Crime: Restorative Justice

Lord Harries of Pentregarth: asked Her Majesty's Government:
	What action they intend to take in the light of the fourth report on restorative justice.

Lord Bach: My Lords, although the recently published research report showed that, overall, the evidence of the effectiveness of restorative justice in reducing adult reoffending is no stronger than that for other interventions, earlier research showed that it delivers high levels of victim satisfaction. The Government are therefore considering what further encouragement they can provide to support the continued growth of adult and youth restorative justice, taking account of the complete findings from the evaluation of the crime reduction programme restorative justice pilots.

Lord Harries of Pentregarth: My Lords, I thank the Minister for his reply, but I was somewhat surprised that he drew that conclusion, as one of the major points of the report was that, taken overall, reconviction rates had reduced. I was looking forward to hearing the Government's plans for extending this over the whole criminal justice system. Have the Government come to any conclusion about the effectiveness of the different forms of restorative justice, given that a key element is the experience of the offenders themselves in the process?

Lord Bach: My Lords, I am sorry that I disappointed the noble and right reverend Lord, but the evidence for the effectiveness of restorative justice on reducing reoffending is not stronger than that for other interventions. There may be an extremely limited positive effect against the traditional measure of the likelihood of reoffending over two years. There was statistically significant evidence that restorative justice reduces the frequency of further offending, but no evidence that it reduces its severity. Our job is to evaluate the research, which shows that restorative justice may have a positive aspect as regards reoffending but that victims express massive support for it. As I said, the Government will carry on trying to improve and bring forward restorative justice.

Lord Elton: My Lords, the Minister laid particular emphasis on the word "adult" when he talked about the statistical results. Does that lead us to believe, or hope, that the results for juvenile offenders were more significant?

Lord Bach: My Lords, the research concerned mainly adult offenders. As the noble Lord knows better than most, restorative justice is embedded in the youth justice system. It has been taken forward in that system and is being taken further forward as we speak, as an addition to the conditional cautions that are being piloted for 16 and 17 year-olds.

Baroness Corston: My Lords, would it surprise my noble friend to hear that, during a visit to New York last week as a member of the Howard League for Penal Reform's Commission on English Prisons Today, I learnt that the local prison population there has plummeted, crime has gone down dramatically and people feel safer? Can he see to it that we examine the factors that were put into place in New York to bring about a situation that is much more encouraging than the one that we face?

Lord Bach: My Lords, I am grateful to my noble friend, who speaks with great knowledge on these matters. Of course I will go back to the department and suggest that it finds out—I should imagine that it has done so already—what has happened in New York and whether that has relevance to our position here. I am sure that it does.

Lord Dholakia: My Lords, does the Minister accept that the twin aims of restorative justice are to reduce reoffending and to assist in the process of rehabilitating offenders? If that is the case, when does he expect to review the Rehabilitation of Offenders Act 1974, which in fact inhibits large numbers of offenders coming out of prisons from getting a decent job so that they can lead a decent life?

Lord Bach: My Lords, I agree with the noble Lord about what restorative justice can do. It can do a third thing, too: to a moderate extent, it can increase the public's confidence in the criminal justice system, which is also very important. We are looking at all matters. In the period during which we have had the four reports, the Government have spent £5 million on this. We are looking at all ways of bringing forward restorative justice in a sensible way.

The Lord Bishop of Liverpool: My Lords, is the Minister aware of the restorative justice programmes that are provided by the chaplaincy service within the prison system? Would he be prepared to take evidence from the chaplains when evaluating the worth of restorative justice programmes?

Lord Bach: My Lords, I have indeed heard of the absolutely excellent work that is done by the chaplaincy service. On the second question, it would of course be a pleasure to take evidence.

Baroness Warnock: My Lords, does the Minister agree that there must be great discrimination as to which sorts of crimes are suitable for restorative justice treatment, because sometimes the victims of crimes are very unwilling to meet or have any further communication with the offender, as that can cause great distress?

Lord Bach: My Lords, the noble Baroness, as always, makes a wise comment. What she says is undoubtedly the case. Although a small number of victims were dissatisfied overall with the process once they had agreed to take part, the process has to be voluntary, certainly for victims. The Government have to take into account the fact that 28 per cent of victims who participated in conferences—those are direct meetings, although there can be indirect meetings—did not feel that the offender was sincere. It is crucial to make sure that victims are happy with this type of justice.

Lord Laming: My Lords, the Minister referred to the importance of public confidence. What steps are the Government taking to promote public confidence in restorative justice?

Lord Bach: My Lords, I said in my reply that we have embedded restorative justice in the youth justice system, so it is very much there and is used a great deal. As far as adults are concerned, we are looking hard at the results of all four reports to see how we can take the scheme further. However, nothing would be worse than to rush too far ahead with restorative justice and thus lose the confidence of those whom it is meant to help, who, I repeat, are the victims.

Climate Change

Lord Hunt of Chesterton: asked Her Majesty's Government:
	When they plan to issue data on the changing average temperature of the land areas of the world in order to inform the development of their policy on climate change.

Lord Rooker: My Lords, data on the changing average temperature of land areas are freely available on the Met Office Hadley Centre's website. These data show that the average temperature over land has increased by 1 degree centigrade since pre-industrial times and, furthermore, has continued to rise over the past 10 years. Most of this increase can be attributed to the human-induced increases in greenhouse gas concentrations, demonstrating that humans are affecting climate change. These data, together with other observations, underpin our understanding of climate change and already inform policy in this area. This is a very complicated and complex issue. I shall arrange for some large coloured graphs showing the long-term increase in temperature over land, over sea, and combined over land and sea, to be placed in the Library, so that we will all be better informed.

Lord Hunt of Chesterton: My Lords, I thank the Minister very much for that reply. I am sure that it will lead to a better understanding in this House and more widely. Will he ensure that when the Committee on Climate Change is established, it will be responsible, with the Hadley Centre for Climate Prediction and Research, for issuing regular updates of the most relevant climatic data? Does he agree that that should help to correct the misleading remarks made about such data by some politicians?

Lord Rooker: My Lords, the Committee on Climate Change will not be responsible for issuing regular updates on climate information relevant to where people live. However, the adaptation sub-committee of the Committee on Climate Change will have a role in advising the Government on their national climate change risk assessments and will produce the budget over a five-year period, the first one being reported within three years of Royal Assent. The work of both the sub-committee and the main Committee on Climate Change will be informed by the information provided by the Met Office Hadley Centre.

Lord Lawson of Blaby: My Lords, I have no idea to whom the noble Lord, Lord Hunt, might have been referring. In so far as there may be a slight difference between surface temperatures over sea and those over land, is the Minister aware that it is generally accepted that those over sea are more likely to be accurate because temperatures over land are complicated by what is known as the "urban heat island" effect? Is he further aware that not only do satellite observations in the atmosphere, which all reputable scientists regard as being more accurate than surface measurements, show no difference between land and sea temperatures over a period but they also show that, despite an unprecedented increase in carbon dioxide emissions, there has been no further warming at all so far this century?

Lord Rooker: My Lords, I did say that this is a complicated issue. Since pre-industrial times, global average temperatures have increased by 0.75 degrees centigrade, land temperatures have increased by 1 degree centigrade, and over the sea surface temperatures have increased by 0.66 degrees centigrade. The noble Lord is involved in a dialogue on this issue, and I am in the middle of reading his book, which I have brought with me today. However, the temperature measurements that I am quoting are put together by the Hadley Centre in the United Kingdom and two organisations in the United States, including NASA. They are based on 3,000 ocean buoys and some 3,000 weather stations around the world. That is how the temperature measurements are collected. I am informed, contrary to what the noble Lord has just said, that Defra believes that land-based weather stations are a little more accurate than satellites, although one has to take as big a picture as possible, as technology moves on. I shall put the graphs in the Library as soon as possible.

Lord Teverson: My Lords, an important issue relating to land is land use and changes in land use, particularly through deforestation, which globally is responsible for more carbon emissions than the transport sector. What is the Government's strategy for moving that agenda forward at the climate change negotiations in Copenhagen next year? How would the Government like to see the deforestation issue being solved?

Lord Rooker: My Lords, I freely admit that my briefing on that is not up to date. I am sticking to figures for temperatures based on the two most recent Questions that I have answered in the House. Obviously, the negotiations in Copenhagen will be crucial in agreeing a replacement for Kyoto. We are not in favour of forests being chopped down, as we made absolutely clear during the passage of the Climate Change Bill. There will be plenty of opportunity for the Government to set out their case in the autumn during the Report stage of the Climate Change Bill and then in this House.

Lord Winston: My Lords, does the Minister not agree that there is a very strong body of scientific opinion which argues that we have underestimated, rather than overestimated, the risk of climate change?

Lord Rooker: My Lords, I say to my noble friend, whose birthday we welcome today, that there are disputes between scientists and allegations that 30 per cent of the world's scientists disagree with the general consensus. However, I emphasise that there is not a shred of evidence that 30 per cent of the world's scientists disagree with the world consensus among scientists, and if anyone were to bring forward that argument, it could, I hope, be seriously rebutted. No one is claiming that all scientists agree, but the consensus among thousands of scientists throughout the world, working on behalf of the climate organisation at the United Nations, is that something out there is happening: the temperature is increasing, and man is responsible for it.

Lord Elton: My Lords, is the noble Lord aware that, unless things have changed recently, there is no colour photocopier in the Library and that it would therefore be very useful if he could give us a large number of originals rather than one to copy?

Lord Rooker: My Lords, the note at the bottom of the graphs referred to the red line, the blue line and the grey line but, as they had come via a fax machine, they were pretty useless to me. Since then I have had copies produced in Defra at vast expense. I shall put readable copies of the graphs in the Library.
	One can see that there has been an increase over land. Over the sea there has been a tip of a decrease in temperature because of the El Niño effect in the Pacific, which has now ended. It brings cold water from the bottom of the ocean to the top and reduces the temperature over the sea. Over land the increase has continued, as the graphs clearly show.

The Countess of Mar: My Lords, to what extent is the Department of Health involved in discussions on policy on climate change? For example, is the Minister aware that the Crimean-Congo haemorrhagic fever virus is tramping its way across the Continent at the moment? Are we prepared for it? Has Defra warned the Department of Health, as it is a vector-borne disease?

Lord Rooker: My Lords, the whole of Government are on alert for different diseases among humans. This morning I was at Wisley launching a consultation on plant diseases that have been discovered in the country only in the past five years. That may or may not be as a result of climate change or international trade, but I can assure the noble Countess that the Department of Health is fully aware and prepared for changes in the temperature and the climate as regards new diseases that will come into the country.

Children: UN Committee on the Rights of the Child

Baroness Walmsley: asked Her Majesty's Government:
	Whether the Secretary of State for Children, Schools and Families will head the United Kingdom delegation reporting to the United Nations Committee on the Rights of the Child in Geneva on 23 September.

Baroness Thornton: My Lords, the UK delegation will be led by a senior civil servant, Tom Jeffery, director-general at the Department for Children, Schools and Families, who will be able to undertake a high-quality dialogue with the committee. The UK Government do not routinely send Ministers to report at this type of hearing and, like the Governments of most other western countries, have not previously sent Ministers to the United Nations Committee on the Rights of the Child.

Baroness Walmsley: My Lords, I thank the Minister for her reply. Will she tell her right honourable friend the Secretary of State how much the committee appreciate it when a country sends in its delegation its most senior Minister to report to it on forward goals and priorities for implementation of the convention? Will she also tell him that, if he felt moved while he was there to implement the Convention on the Rights of the Child and to integrate it into UK law fully, wholeheartedly and overtly, he would make himself even more popular with the committee?

Baroness Thornton: My Lords, the UK Government take the reporting process very seriously. We have identified suitable senior officials who will be able to undertake this task. It is long established that those officials will represent the Government, but they also bring together the devolved Administrations and other government departments. However, the Minister of State for Children, Young People and Families has written to the UN committee's rapporteurs in the UK and has invited them to meet her while they are in the UK this summer. We take this extremely seriously and are keen to enter into a constructive, strategic and fruitful dialogue with the UN committee.

Baroness Rawlings: My Lords, how will the Minister make certain that the dialogue with the committee on 23 September is strategic and fruitful, as the UN committee stipulates, and in what way does the Minister intend to report back from the committee?

Baroness Thornton: My Lords, a high-powered delegation is to go. We have in this area active NGOs, which, as the noble Baroness will be aware, have a great deal to say about how the United Kingdom should carry through the Convention on the Rights of the Child. I have absolutely no doubt that they will keep our noses to the grindstone and will ensure that this is done effectively, as will noble Lords who are active on these issues.

Baroness Jones of Whitchurch: My Lords, does my noble friend recognise that 87 per cent of British children know nothing about the work of this important body? What are the Government doing to raise awareness of its work in this country and with children in terms of the curriculum?

Baroness Thornton: My Lords, the Department for Children, Schools and Families is providing funding to UNICEF for its Rights Respecting Schools initiative—an initiative that the noble Baroness, Lady Walmsley, has advocated in this House. The initiative aims to help to provide children with a practical understanding of the personal meaning of their rights and those of others by relating the principles of the UNCRC closely to everyday behaviour in the classroom and school.

Sudan

Lord Alton of Liverpool: asked Her Majesty's Government:
	What steps they are taking to bring to justice those responsible for the killing of seven United Nations-African Union peacekeepers in Sudan on 8 July, and to identify the role of President al-Bashir and others in the violence.

Lord Bach: My Lords, my right honourable friend the Secretary of State for Foreign Affairs on 9 July called the attack,
	"a horrific and cowardly act of violence",
	and has reiterated the United Nations Security Council's call for those responsible to be brought to justice. We are today working to agree a UN Security Council statement condemning the attack. The UN and the African Union have begun a preliminary fact-finding investigation to be followed by an official investigation, which we support.

Lord Alton of Liverpool: My Lords, if this is not genocide, what is? That is the question I asked in your Lordships' House four years ago after visiting Darfur and taking evidence there. Then, 50,000 people were dead; the figure is now some 300,000. Should we not commend the bravery of yesterday's decision by Luis Moreno-Ocampo, the chief prosecutor of the International Criminal Court, mandated by the Security Council, to ask the court to consider against Omar al-Bashir: three counts of genocide for killing members of the Fur, Masalit and Zaghawa ethnic groups; five counts of crimes against humanity for murder, extermination, forcible transfer, torture and rape; and two counts of war crimes for attacks on the civilian populations of Darfur? Should we not also consider carefully Mr Moreno-Ocampo's words:
	"The genocide is ongoing ... Seventy year-old women, six year-old girls are raped ... I do not have the luxury to look away".
	Is this not a timely warning to tyrannical leaders from Zimbabwe to Burma that prosecutions must follow where evidence leads; that truth may be difficult, but that makes it no less true; that in the long term, there can be no peace without justice; and that the international community will not tolerate a culture of impunity?

Lord Bach: My Lords, I commend the noble Lord for his passion on this matter. The House will agree with him that terrible things have occurred and are occurring. As he said, the ICC prosecutor yesterday announced his application to the ICC judges for an arrest warrant against the President. The prosecutor is completely independent and the court has its own procedures. We therefore believe it would be inappropriate and premature to speculate or to comment on the outcome of the deliberations of the court, but we have a long-standing position of support for the work and purposes of the ICC, and that remains the case. We also have a long-standing position of calling on the Government of Sudan to co-operate with the ICC over the two existing indictments. That remains the case, and my right honourable friend the Foreign Secretary reiterated the points I have just made to the Sudanese President himself during his visit to Khartoum last Wednesday.

Lord Avebury: My Lords, does the Minister agree that al-Bashir has a period of about three months' grace while the ICC considers whether to prefer an indictment on these charges, and that if in the meanwhile he facilitates the work of UNAMID, causes the Janjaweed to be stopped in its tracks and facilitates the arrest and prosecution of war criminals, the court would have the power to suspend the indictment for a while?

Lord Bach: My Lords, it is clear that now that the prosecutor has asked for a warrant the court will take some time to make up its mind about whether it is a proper request. That is an important time for the President of Sudan and for the United Nations.

Lord Howell of Guildford: My Lords, does the Minister have an estimate of whether UN personnel, who have been temporarily withdrawn from al-Fashir and other places in the Darfur region, are in any increased danger as a result of the dialogue going on? It may be too early to speculate on the outcome of the panel of judges of the ICC and what they decide, but is it correct to say that the Security Council would have power to delay any implementation of a decision for one year? Has that aspect also been considered?

Lord Bach: My Lords, as to the noble Lord's last question, he is quite right: there is a power under Article 16 of the Rome statute for the Security Council to defer an investigation. I do not know for what length of time—I thought that it was a shorter period than 12 months; obviously I can find out—but it has that power.
	Commentators everywhere are discussing the consequences of the prosecutor's action yesterday, particularly for United Nations and African Union soldiers and peacekeepers and for those many NGOs that are there in a humanitarian capacity, in the next few weeks. It would be foolish of me to comment further on that.

Baroness Cox: My Lords, is the Minister aware that in addition to the alleged genocide and war crimes for which President al-Bashir may be indicted by the ICC, during the previous war against the south, in which 2 million died and 4 million were displaced, many crimes against humanity—war crimes—were committed by President al-Bashir's army? I have witnessed them personally from walking through killing fields of slaughtered women and children many times during 25 visits to the war zones. Does the Minister agree that such a prosecution might make it possible to bring President al-Bashir to account for those atrocities as well? Does he agree that that is at least a point of consideration?

Lord Bach: My Lords, again, I pay tribute to the noble Baroness, whom I know has visited those terror fields herself, but I must repeat what I said before. This is now a matter for the ICC and for its judges. The arrest warrant has been issued and it is now for the three judges to make up their minds what they should do with it. It would be inappropriate for any Government to say anything about the independent court, which must reach its own decision.

Lord Wallace of Saltaire: My Lords, the Minister mentioned the many people working for NGOs in Khartoum and all over Sudan. Can we be reassured that the British Government, with their partners in the international community, are making plans if necessary to help to remove those people from Sudan, given the rather threatening remarks that the Sudanese Government have made about violence towards foreign personnel if the indictment is confirmed?

Lord Bach: My Lords, the first duty of those responsible for NGO employees is to ensure that their safety is, as best as can be, guaranteed, but the British Government are very aware of the delicate situation that now arises in Sudan. The noble Lord can be sure that we are taking all the necessary steps.

The Lord Bishop of Southwell and Nottingham: My Lords, will the Minister encourage the Government to meet some of the Sudanese bishops who are at present in this country for the Lambeth Conference?

Lord Bach: Yes, my Lords, I certainly will.

Lord Hannay of Chiswick: My Lords, does not the noble Lord agree that it is very important that it be made clear that this International Criminal Court administers justice in an even-handed way? The extension of responsibility to Sudan by the Security Council some years ago applies to the insurgents, just as it applies to the Government. If the insurgents commit crimes against humanity or grave breaches of international humanitarian law, they too will be pursued by the court, as was the case in the former Yugoslavia, where some members of all three groups were eventually brought before the court. It is rather important that that be so. It should not be thought that the court is a mechanism for pursuing just the Government.

Lord Bach: My Lords, the noble Lord makes an important point. He will know that an international commission of inquiry concluded in January three years ago that the Government of Sudan had not pursued a policy of genocide, but highlighted grave concerns about crimes committed by all sides in Darfur. The United Kingdom was one of the countries that took the matter to the Security Council. The consequence of that is where we are today. Our priority is to ensure that violations of international humanitarian law cease and the perpetrators are held to account.

Lord Roberts of Llandudno: My Lords, last week we welcomed the announcement that there will be no more forcible removals of failed Darfuri asylum seekers to the Sudan. Will the Government now assure us that this will not be recommenced during the Recess and that no asylum seekers will be returned to an already desperate situation?

Lord Bach: My Lords, as I understood it, we were talking last week about Zimbabwe. The noble Lord asked me about Sudan. I cannot give the guarantee that he seeks for the Recess, but I will write to him with an answer.

Lord Elton: My Lords, the noble Lord mentioned the—to some of us—surprising power of delay by the Security Council. Is that power subject to veto, or is it procured by majority?

Lord Bach: My Lords, as I understand it, a proposal is put forward and can be vetoed by one of the five permanent members.

Business

Baroness Royall of Blaisdon: My Lords, the House has a very full day before it. We will now have the Committee stage of the Criminal Evidence (Witness Anonymity) Bill, followed immediately by formal Report and Third Reading. The House will then consider the Second Reading of the Planning Bill, on which 37 Peers have indicated a desire to speak. Neither piece of business is strictly time-limited, so precise calculations are impossible. However, if Back-Bench speeches on Second Reading are limited to seven minutes, it should be possible for that stage to be completed tonight. If the Criminal Evidence (Witness Anonymity) Bill takes longer than anticipated, it may be necessary to adjourn the Planning Bill's Second Reading and to complete it tomorrow. I will, of course, keep the House informed as business progresses.

Criminal Evidence (Witness Anonymity) Bill

Lord Hunt of Kings Heath: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
	Moved, That the House do now resolve itself into Committee on the Bill.—(Lord Hunt of Kings Heath.)

Lord Kingsland: My Lords, I do not intend to oppose the Committee stage of the Bill, or to object to its remaining stages being taken today. I have intervened at this juncture because a significant and lengthy amendment was tabled last night by the Government. No warning was forthcoming, and the amendment was not seen until it appeared in the Printed Paper Office this morning.
	I am aware that this is emergency legislation. We, for our part, have accepted the need for speed, although we believe that, even in the context of emergency legislation, the time allowed for parliamentary scrutiny in this case has been too truncated, especially in the context of a measure that goes to the heart of the principle of a fair trial and the liberty of the individual.
	I also recognise that, within the exacting timetable that the Government have set, they have presented us with a number of welcome opportunities to discuss the Bill. It was, therefore, all the more bewildering to be taken by surprise this morning. When I asked for an emergency meeting with the noble Lord, Lord Hunt, he and his team responded with characteristic and commendable promptitude. Nevertheless, I have had no chance to discuss the matter properly with my colleagues in another place, let alone formulate a considered manuscript amendment.
	This state of affairs further undermines the effectiveness of scrutiny, which is already restricted by the severe curtailment of normal Bill procedures in your Lordships' House. Such conduct is constitutionally counterproductive. It simply lends support to those who take the view that emergency legislative procedures are little or no more than government by decree.

Lord Thomas of Gresford: My Lords, I support the noble Lord, Lord Kingsland, in his protest at the late setting down of these amendments. Amendment No. 4A states:
	"Nothing in this section is to be taken as restricting any power to make rules of court".
	It is crucial to our debates today to know whether the Government intend to make rules of court, in which case many of our objections might be properly addressed at that stage. If we are being presented with something just to paper over the cracks, as opposed to a positive commitment from the Government to make rules of court covering this extremely difficult area of procedural criminal law, it is a disgrace to Parliament that this procedure is adopted.

Viscount Bledisloe: My Lords, the Front Bench has said that we will proceed straight away to the Report and Third Reading stages. What will happen if anyone wants to put down amendments for Report stage or later?

Lord Hunt of Kings Heath: My Lords, I thank the noble Lords, Lord Kingsland and Lord Thomas of Gresford, for giving me this opportunity to apologise unreservedly to the House for the late tabling of two government amendments last night. I do so apologise. We have attempted at all stages of this Bill to work as closely as we can with both Opposition Front Benches. I want to place on record my appreciation of the co-operation that we have had from the noble Lords, Lord Kingsland and Lord Thomas of Gresford, and their Front Bench colleagues in the other place.
	The House will understand from the Statement made to your Lordships and from our Second Reading debate that we have had to draft this Bill at a very rapid pace, following the judgment in Davis, which was delivered just four weeks ago. We identified a potential loophole only in the past few days and we concluded that it would be highly desirable to make changes in the Bill to avoid that potential loophole being exploited. I apologise that, in the rush to prepare the amendments, it was not possible to provide the Opposition with adequate notice or a fuller explanation.
	The noble and learned Baroness the Attorney-General will set out the need for these amendments when we reach the relevant stage in our proceedings in Committee. The Bill should be seen as an interim measure until the next Session. Last Tuesday we made an undertaking to the Commons that further legislation would be introduced in the next Session. The Law Reform, Victims and Witnesses Bill will subsume the contents of this Bill and will enable full parliamentary scrutiny.
	Again, I apologise to the House for what has happened. I beg your Lordships' tolerance on the understanding that we will have a full opportunity in the next Session to debate these matters again. We intend to invite the Criminal Rules Committee to make rules of court. Of course, it will be up to it to make its own decision.
	I should say to the noble Viscount, Lord Bledisloe, that these matters have been discussed in the usual channels, but of course it is open to any noble Lord to move an amendment at any stage in the Bill's proceedings.

Lord Strathclyde: My Lords, is this not a very sorry tale? It has one benefit in that it demonstrates how wise we were in this House to pass this legislation over two days when another place had to rush it through in a matter of hours. Can the Minister explain why these amendments were tabled so late last night, why my noble friend Lord Kingsland was not given copies of them, and when the Government were made aware that amendments would be required? I do not know if the noble and learned Baroness the Attorney-General would be the right person to offer that advice. Further, when were Ministers first advised that amendments would be required, and could this not easily have been done before the weekend?

Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Lord, Lord Strathclyde, for his comments. I accept that having a gap between Second Reading and the remaining stages of this Bill has proved to be a wise decision. As he will know, it followed discussions in the usual channels. I cannot tell him the exact moment when Ministers knew of the issue, but I have told the House that, as work had to be done rapidly, notification for the noble Lords, Lord Kingsland and Lord Thomas of Gresford, was left until very late. I can only apologise for that. We should have done better and I wish we had, but I hope that the House will be tolerant on the basis that in a few months' time we will have an opportunity to come back to the clauses that, it is hoped, will be enacted today. The new Bill will allow for further thorough scrutiny, as your Lordships' House is wont to do.

Lord Tebbit: My Lords, I can well understand how difficult it would be to define the precise moment when Ministers became aware of the need for these amendments, but can the noble Lord tell us when officials were instructed to start drafting them?

Lord Hunt of Kings Heath: My Lords, I cannot give an exact audit trail for when a particular instruction was given. As a senior Minister for many years, the noble Lord has great experience of the business of government, and what I can tell him is that the drafting of the Bill took place over a short period, in the light of the judgment by your Lordships' House; we had to move very rapidly. However, we held a series of meetings with noble Lords and the Front Bench representatives of both major parties in this House and the other place.
	When officials identified that there was the possibility of problems in the original drafting, it was their responsibility to draw them to the attention of Ministers, and in turn Ministers had to take responsibility for the decision to bring forward government amendments. That has happened. Of course I am happy to look into the timing, but I do not have the details with me today. I reiterate my apology to the House and my determination to ensure that we will have every opportunity to discuss these matters in full during the next Session.

Lord King of Bridgwater: My Lords, one recognises that there are occasions over the years when emergency legislation is required, and that it can cause problems. While the Minister offers the encouragement that new proposals will be brought forward in a couple of months' time, is not the reality that the law of the land will be determined by the passage of this legislation today? It will become the law, probably for the coming year. This is not quite as large a concession or amelioration of the situation as he suggests.
	I have no authority to speak on this and I will probably be shot by my Front Bench, but why is not the Third Reading postponed to give my noble friend the opportunity to carry out at least some consultation? This, as the Minister rightly says, is important legislation that goes to the heart of the justice system of our country, but is there not some suggestion that it is being passed with one part of the House not being fully informed about the implications?

Lord Hunt of Kings Heath: My Lords, I suggest that discussions now take place with the usual channels. I am sure it will then be possible to report back to the House on this matter.

On Question, Motion agreed to.
	House in Committee accordingly.
	[The LORD SPEAKER in the Chair.]
	Clause 1 [New rules relating to anonymity of witnesses]:

Lord Lyell of Markyate: moved Amendment No. A1:
	Clause 1, page 1, line 8, leave out "abolished" and insert "are to be interpreted in accordance with the provisions of this Act."

Lord Lyell of Markyate: The amendment relates to the common law rules and seeks to leave out that they should be "abolished" and to insert instead that they,
	"are to be interpreted in accordance with the provisions of this Act".
	Its purpose is not to abolish these rules, which are an important part of our common law principle of open justice, but to retain their substance—subject, of course, to the broadly sensible modifications set out in the Bill.
	The starting point must be, as it has always been, that as far as possible criminal trials under our adversarial system should be conducted on the basis that the accused person is openly confronted by his accusers, with the chance to cross-examine them on the basis of full disclosure by the prosecution. In the vast majority of cases, even in times as difficult as the Troubles in Northern Ireland, these rules have retained public confidence and stood the test of time. There is, however, a real problem of witness intimidation today, which has led to modifications by the courts, up to the Court of Appeal. The Judicial Committee of the House of Lords, in R v Davis, ruled that these modifications went too far. The Law Lords have rightly restated the common law and, directly or indirectly, invited Parliament to address the problem, which we are today continuing to do.
	As I said, the object of the Bill should not be to abolish the common law rules which helped to save England and Wales from the iniquities of the Spanish Inquisition—I am quoting the noble and learned Lord, Lord Bingham—and to underpin the abolition of the Court of Star Chamber by the Long Parliament in 1649, and which have stood the test of time since then. It should be to modify them where necessary to combat the current problems of witness intimidation whilst scrupulously maintaining the right to a fair trial for both the prosecution and defence sides.
	The rules also form the foundation of Article 6.3(d) of the European Convention on Human Rights. Although the incorporation of the convention into our law has done a great deal of good, it is something of a back stop and, in certain areas, as the House well knows—for example, the Regulatory Enforcement and Sanctions Bill—it has led to some lowering of standards. It is to be regretted that we simply go for the back stop and not for our traditional rights.
	The Government and the cause of justice have nothing to fear from the amendment or from making clear that the common law rules, now to be modified by the Bill, still form the starting point and underpin most of its provisions and safeguards. In Clause 5(2)(c) the question of whether evidence given by the witness might be the sole or decisive evidence implicating the defendant is a consideration which the court must "have regard to", according to Clause 5(1). But the words "have regard to" are not a very strong injunction in themselves when it is remembered that in R v Davis the noble and learned Lord, Lord Bingham, emphasised twice, at paragraphs 34 and 25 of the judgment, that it formed the key reason for his overturning of the Court of Appeal's judgment. He said:
	"At no point in its judgment does the Court of Appeal acknowledge that the right to be confronted by one's accusers is a right recognised by the common law for centuries".
	With regard to Strasbourg, the noble and learned Lord said, at paragraph 25, that,
	"no conviction should be based solely or to a decisive extent upon the statements or testimony of anonymous witnesses".
	The reason is that such a conviction results from a trial that cannot be regarded as fair. That is the view traditionally taken, as the noble and learned Lord says, by the common law of England.
	It is some comfort that Strasbourg, as so carefully analysed by the noble and learned Lord, Lord Manse, would probably have reached the same result in R v Davis, but my point here is that our common law tradition remains of basic, huge importance, in the protection of our liberties and the right to a fair trial, even—perhaps especially—for the most heinous offenders. Let us therefore build upon that common law principle and modify it carefully where the court can be satisfied that it is fair, just and necessary so to do, but let us not abolish it. I beg to move.

Lord Mayhew of Twysden: I support my noble and learned friend. I have one point of principle and one of practicality. The point of principle is that we should look very closely at any proposal in emergency legislation to abolish any common law rule whatsoever, especially one that has persisted, as my noble and learned friend has reminded us, over many centuries and to great effect. The amendment proposes to leave out "abolished" and insert that the common law rules,
	"are to be interpreted in accordance with the provisions of this Act".
	That says all that is necessary.
	Clause 5(2)(a) asserts,
	"the general right of a defendant in criminal proceedings to know the identity of a witness in those proceedings"—
	not "a" general right, but "the" general right. Such a general right derives only from the common law rules. If we are going to have in one clause the abolition of the common law rules and in another clause an assertion of their persistence, the result is a legislative and drafting muddle. I support my noble and learned friend and I hope the Government will too.

Lord Kingsland: I also support my noble and learned friend's amendment. There are many statutory rules, many texts containing guidance and many conventions that have grown up to support the common law rules as they were at the time of Davis. What is to be the fate of those now? Are they still to remain, or are they part of the common law rules that are, to quote Clause 1(1), to be "abolished"? In my submission, the expression "common law rules" is too vague to indicate whether the answer is one way or the other.
	As I understand it, one of the reasons why the Government tabled the late amendment that was the subject of the earlier debate was that they were nervous that Clause 1(2) abolished not only the common law rule itself but that plethora of subordinate rules, many of which relate to procedure and evidence, that have grown up with it. If the Government have that fear, there must be other matters, in addition to the one that they sought to cover with the amendment, that might be abolished by Clause 1(2). In that case, we would expect the Government to have tabled many more amendments than they have done.

Lord Thomas of Gresford: We support the amendment of the noble and learned Lord, Lord Lyell. The mistake is to refer to common law rules at all. We are considering a principle rather than rules. You cannot look in a book and see what the common law rules are. In their judgments and opinions in Davis, their Lordships made it clear that they were talking about fundamental principle. The noble and learned Lord, Lord Bingham, said:
	"It is a long-established principle of the English common law that, subject to certain exceptions and statutory qualifications, the defendant in a criminal trial should be confronted by his accusers in order that he may cross-examine them and challenge their evidence. This principle originated in ancient Rome".
	The noble and learned Lord, Lord Rodger of Earlsferry, said:
	"Your Lordships were not referred to any Scottish authorities on the point. But, as in England, the principle is so deeply embedded that it scarcely needs stating by the Scottish courts".
	The noble and learned Lord, Lord Mance, having referred to all the European jurisprudence on this matter, said, again, that it was a matter of principle that comes from the history of the law of England and Wales and from its roots in other systems of law in the past.
	What does abolishing the common law rules mean? I accept entirely the criticism of the noble Lord, Lord Kingsland—the phrase is vague. Is the principle being abolished or is it to be upheld but within a statutory framework? If it is the latter, that is precisely what the noble and learned Lord, Lord Lyell, is aiming at in his amendment. It would make it quite clear that the principle remains but that it must be construed within the statutory framework.

Lord Lloyd of Berwick: I had not intended to intervene on this amendment, but surely there is a distinction between the principle involved here and the rules. The principle that a person is entitled to be confronted by his accusers is still preserved by the Bill. The rules we are talking about are an exception to that principle. Those are the rules which are to be abolished, and it seems a good thing that they should be.

Lord Elystan-Morgan: I have a great deal of sympathy with the views expressed by each and every noble and learned Lord who has contributed to the debate so far. It seems to me that everyone's intentions are noble and honourable. The question, however, is whether the amendment can achieve what it seeks to achieve. I may be looking at the matter much too rigidly, but one could mount this argument: either the common law is preserved or it is overruled by statute and replaced by statute. You cannot, effectively—and certainly not without a great deal of danger—have statute told how to interpret in accordance with the rules of common law. The two realms are mutually exclusive.
	I hope and trust that the Government say that the principle has been maintained and that it is spelt out clearly in Clause 5(2), which refers to,
	"the general right of a defendant in criminal proceedings to know the identity of a witness in the proceedings".
	I hope that they can say, "That is exactly what Blackstone in his commentaries in 1794, Bentham in 1827 and Sir Matthew Hale in 1820 were talking about". The judgment in Davis said of Bentham:
	"The latter regarded the cross-examination of adverse witnesses as 'the indefeasible right of each party, in all sorts of causes'".
	If Clause 5(2) is intended to do that and no less, there does not seem to be a problem. If there is a problem, I accept that it has to be tackled in some way, but, with the greatest respect to the noble and learned Lord, I doubt whether it should be by way of this mechanism.

Baroness Scotland of Asthal: I thank both the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Elystan-Morgan, for precisely explaining the position. However, I say straightaway to the noble and learned Lords, Lord Lyell and Lord Mayhew of Twysden, that I absolutely understand their anxiety about this matter, which was echoed by the noble Lords, Lord Kingsland and Lord Thomas of Gresford. The Judicial Committee in the House of Lords sought to change, and said that it had to change, the way in which we were using the common law because it was being used inappropriately. We are abolishing only the common law rules relating to the power of a court to make an order for securing the identity of a witness. We are not changing anything else in criminal proceedings. It is important for us to recognise that. The important principle is being retained.
	The amendment seeks to preserve the common law rules on witness anonymity, and to transform the Bill into a gloss on those rules. Thus, witness anonymity would remain a common law matter, but would be interpreted by the Bill. That is what the House of Lords Judicial Committee expressly said that we could not do. The House of Lords judgment in R v Davis declared that there is no common law power, except in a narrow category of cases, for courts to allow evidence to be given anonymously at trial. Therefore, the only way in which we can deal with that matter is through statute, which is what we now propose.
	It is important that we are clear about this matter, because courts throughout our country will need to understand precisely what we have done and how we have sought to answer the Judicial Committee so that they have a solid basis on which to go forward. Seeking to preserve the common law in the way suggested by the amendment would risk creating uncertainty for the courts and parties to criminal proceedings, which would not be desirable—I do not think that any noble Lords who have spoken in support of the amendment would want that. However, I am grateful to them, because we have been able to put on record our clear understanding of what is and what is not being dealt with. We are dealing only with the common law ability to grant anonymity orders, which the Judicial Committee said we cannot use, and we are substituting a statutory framework by way of the provision. I hope that noble Lords will accept that clarification and be content, because I absolutely understood the noble and learned Lords, Lord Mayhew of Twysden and Lord Lyell, who said that we have to deal with this matter.
	I reassure the Committee that the court in Davis made it clear that this part of the process is not an ancient common law rule. At best, it goes back to about 1990, as, I hope, if one looks at the judgment, the review in the case of Davis on the development of the common law made clear. The general right under common law of a defendant to know the identity of a witness is not being abolished; it is being maintained.

Lord Lloyd of Berwick: Does the noble and learned Baroness agree that, once the principle is established, the worst solution would be to have common-law rules and statutory rules running side by side? That always leads to confusion.

Baroness Scotland of Asthal: I agree with the noble and learned Lord. If there is one thing that we need now it is clarity. Many of us believed that the common law could be used as the noble and learned Lords, Lord Lyell and Lord Mayhew, said. We thought that that which was being done was being well done, and that we could use the common law to good effect in this way. We all have to accept that the Judicial Committee of the House of Lords disagreed with us and with the Court of Appeal Criminal Division, which was unanimously of that view. So we bow with, I hope, good grace, to its wisdom. This provision seeks to give voice to what it says we should do.

Lord Lyell of Markyate: I am most grateful to noble and learned Baroness the Attorney-General and to all who have taken part in this debate. I am quite confident of one thing—that there is a common search after truth and good sense in this Chamber. I hope that I will not be thought cavalier if I say that the noble and learned Baroness's statement that there is now a clear understanding might not be as crystal clear as, I hope, it will become. I have to confess that I am not absolutely clear which common-law rules are being abolished and which long-standing common-law principles are being retained. I am most grateful to the noble Lord, Lord Thomas of Gresford, for emphasising that distinction, because we certainly do not wish to lose those principles.
	We are all seeking to make progress, so I merely ask the noble and learned Baroness—I hope that this is not asking too much—whether she would be kind enough to undertake to look at this matter extremely carefully before we come back in October and before the Government introduce a properly considered Bill on this matter.

Baroness Scotland of Asthal: I would be very happy to do that. I said during the previous debate—and I am very happy to repeat it now—that one good thing that has come out of this debate is real comity on how, across the House, we have tried to work together to craft something that will do what we would all like it to do. So I am very happy to say that we will look at this matter again. When we do, the noble and learned Lord, Lord Lyell, may find that he is with us in thinking that this has been well done.

Lord Lyell of Markyate: I am most grateful to the noble and learned Baroness. At this stage, I cannot ask for more. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 1 agreed to.
	Clause 2 [Witness anonymity orders]:

Baroness Mallalieu: moved Amendment No. 1:
	Clause 2, page 2, line 13, at end insert—
	"( ) the legal representatives;"

Baroness Mallalieu: In moving Amendment No. 1, I hope to continue the spirit of comity that was initiated under the first amendment. Clause 2(4) caused a considerable amount of alarm among practitioners at the criminal Bar and was the basis of part of the briefing from the Bar Council. I am not alone in reading the provisions in this way, as I learnt from a letter, of which I received a copy this morning, sent yesterday by my noble and learned friend this morning to the noble Lord, Lord Kingsland. The reality is that we are both trying to achieve the same thing, but I am not sure that the present wording of this clause does that.
	Under Clause 2(4) the court cannot order a witness to be screened so that he or she cannot be seen by,
	"the judge or other members of the court (if any)"—
	who are presumably magistrates—
	"the jury (if there is one); or ... any interpreter or other person appointed by the court to assist the witness".
	The clause sets out similar provisions for modulation of the voice so that it cannot be identified.
	My amendment seeks to add "the legal representatives", whether barristers or solicitors, to that list as the clause leaves open the possibility that the court could order that a witness is screened and that his or her voice is disguised from prosecution and defence lawyers. The Explanatory Notes confirm that interpretation and make it clear that—quite deliberately it seems; and certainly the letter confirms it—legal representatives have been excluded. I come in a moment to the explanation for that by the Government. I contend that it is wrong if, in addition to anonymity so that a defence counsel does not know who he or she is cross-examining, he is also unable, because of an order of the court, to assess the demeanour of the witness as he gives his evidence. He is therefore in a less advantageous position than the judge or the jury. He cannot assess gestures, laughing, grinning, hesitancy, plain lying, arrogance or defensiveness—all matters which counsel need to know to cross-examine effectively, and, particularly, are matters on which he may need to comment to the jury at the end of the trial.
	Counsel may take the view, as defence counsel did in the case of Davis, that he should not be put into a position where he is able to see material that his client cannot. Counsel in that case took the view that he did not wish to be in that position and therefore did not wish to see the witness, and prosecuting counsel felt that if defence counsel was not doing it neither should he.
	Obviously circumstances vary from case to case. I am aware that many counsel take a different view. They feel that if their client consents, it is their duty to use all available means and opportunity to see and hear the witness without screening and without distortion of voice—the better to cross examine.
	As I understand the noble Baroness's letter, it is her intention that where an anonymity order is made, counsel should still be free to make the decision whether they wish to see and hear the witness. We are both in agreement about that. However, the way the clause is currently worded means that it is open—academically perhaps—for a court to make an order excluding them. It may be that my present amendment is not quite as it should be. Perhaps if it simply read "legal representatives unless they wished to do so" could not be ordered to be screened. Both I and those from the Bar Council who looked at the provision took alarm because it appeared that defence counsel and, indeed, therefore prosecuting counsel might be excluded from performing an important part of their job. I am sure that is not the Government's intention. I very much hope that the Minister will feel that an amendment like the one I have tabled is helpful. I beg to move.

Lord Thomas of Gresford: In her letter to the noble Lord, Lord Kingsland, the noble and learned Baroness, Lady Scotland, suggests that it is still open to the defence counsel to see a witness if they want to. Does the court have power to prevent the defence counsel or the prosecution counsel from seeing a witness in any circumstances? I would like an answer to that question, as that is what I am interested in.

Lord Hunt of Kings Heath: This has been an interesting discussion. I say to my noble friend that I listened with great care to her powerful speech at Second Reading when she outlined her determination to stand up for the right to a fair trial. I echo that, which is why the various safeguards are built into the Bill as it is constituted.
	I of course understand the noble Baroness's concerns on the position of defence counsel. In answer, I refer to the Court of Appeal decision in the case of Davis, where it had the benefit of written submissions from the Bar Council. As a starting point, the Court of Appeal considered that, in certain circumstances, defence counsel may find himself or herself with a conflict of duty where witness anonymity orders are made. They are bound by the order not to disclose the identity of the witness to anybody, in particular to the defendant. On the other hand, they are bound by their professional duty to provide relevant information to their clients.
	The court took the view that defence counsel may see and hear an anonymous witness's real appearance and voice but would be bound by the anonymity ruling and would, indeed, be in contempt of court if they disobeyed it. If the defendant instructs counsel that counsel should inform him of the appearance of the witness or if counsel believes that the professional relationship with the client may be damaged if he were unable to communicate information that his client wanted from him, then it is open to the court to order that defence counsel should be screened from the witness. The Court of Appeal said that, in such an event, counsel for the Crown should be in the same position as counsel for the defendant.
	The Appellate Committee of your Lordships' House in Davis did not address that point. The decision not to make provision for this in the Bill is deliberate. In some cases, defence counsel may decide after taking instructions that they should also be screened from the witness, so that they will be in the same position as the defendant. In such a case, the court will order that prosecuting counsel will also be screened from the witness. It would be for defence counsel to decide on a case-by-case basis, after taking instructions, whether they will volunteer to be prevented from seeing the witness. The Bill does not alter this practice and allows for the flexibility required to continue. However, there is nothing to prevent the court from allowing a barrister to see an anonymous witness in any case. It is for the court to decide on a case-by-case basis.
	The Court of Appeal on Davis commented on these matters at paragraph 72:
	"We cannot legislate in advance for all the possible case specific problems which may arise".
	Anonymity orders may give rise to myriad different situations, including where the parties' legal representatives are concerned. That is why the Bill allows for flexibility and discretion. I take my noble friend's point in seeking to ensure that the rights of defendants are appropriately dealt with. However, from the Court of Appeal's view on this, there is a case for the flexibility that the Bill allows.

Lord Thomas of Gresford: Does the Minister accept that the screening of a witness from the defence counsel might be fair in one case but not in another? The issue of a fair trial does not depend on whether defence or prosecuting counsel is screened from the witness at all. All the circumstances will have to be looked at. You could have apparently similar circumstances where one set leads to unfairness and another set to fairness.

Lord Hunt of Kings Heath: Is not that the most powerful case for having the flexibility that is in the Bill, alongside the Court of Appeal's judgment as regards the level playing field between defence counsel and prosecution counsel if the witness is screened from defence counsel?

Baroness Mallalieu: I fear that the comity goes straightaway. On the one hand, my noble friend seems to be saying that it is for defence counsel to decide—that is what is contained in the letter, as I understand it—but that, on the other, there will be flexibility, which, according to the wording of the clause, means that the court could bar defence counsel from seeing a witness. That seems to me the straight answer to the short point that the noble Lord, Lord Thomas of Gresford, raised, and it gives me enormous anxiety. Although one does not want to be so prescriptive that one cannot be flexible when circumstances arise that require it, essential matters of principle are involved. As the Court of Appeal said, requiring counsel to cross-examine an anonymous witness is like punching at air. What we are doing here is not just punching in the air; we are turning counsel round, facing him in the wrong direction and blindfolding him as well.
	In my submission there must be restraint in the wide, unfettered discretion that this clause gives. It gives me little confidence to know that that power remains in the Bill. I hope that in the 10 minutes between the end of the Committee stage and when we start the next stage of the Bill, there may yet be a chance for the noble and learned Baroness, who wrote the letter, to look again at this matter to see whether minor adjustments to the relevant wording could be made to alleviate the anxiety that I and the General Council of the Bar feel about the clause as it is drafted. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 3 [Applications]:

Lord Boston of Faversham: In calling Amendment No. 2, in view of the groupings I must point out to the Committee at this early stage that, if either Amendment No. 2A or Amendment No. 3 is agreed to, I cannot call Amendment No. 3A.

Baroness Mallalieu: moved Amendment No. 2:
	Clause 3, page 2, line 25, at end insert—
	"( ) Where an application is made under this section, the court must be informed of the identity of the witness."

Baroness Mallalieu: Since I tabled this amendment, the government amendment to plug the gap has been tabled. Despite what was said shortly before we began this Committee stage, I am bound to say that it was not just the Government who failed to notice that there was a rather large gap. All those who spoke at Second Reading and who practise at the criminal Bar should have noticed that there was no provision in the Bill for circumstances in which the defence wished to call a witness with anonymity where there were co-defendants as well. I am grateful that that is being dealt with in the way that it is.
	When I tabled this amendment, I was concerned that nowhere in the Bill—whether in relation to the conditions for making the order, the applications or the relevant considerations—was it expressly spelt out that the court must be informed of the identity of the witness. That ought to appear in the Bill as a safeguard for the defendant. At the very least, the defendant must have the safeguard of knowing that someone other than just the prosecuting authorities knows the true identity of the witness against him. Therefore, I am grateful that the Government tabled their amendment, which deals precisely with that point in its first new subsection. As I said, I am also grateful for the tabling of the longer, more detailed amendments that follow it, which seem to me to make sense.
	The amendment in the name of the noble Lord, Lord Kingsland, which is grouped with Amendment No 2, appears to indicate that defence making an application in relation to an anonymous witness should notify the court but not the prosecutor. There seem to me to be difficulties with that, as the court will not be in possession of the large amount of undisclosed material that will be available to the Crown. It may benefit the defence if the prosecutor is aware of the identity of the witness whom the defence proposes to call, who may hold material of importance to the trial. I beg to move.

Lord Kingsland: As the noble Baroness referred to my amendment in this group, I feel compelled to say something about it. She was quite right to describe my amendment as one that requires information from the defendant to be given to the court alone and not to the prosecutor. She went on to say that that would be a rather overinhibiting requirement, because the court would not be in a position to make an appropriate assessment without information that would come from the prosecutor.
	I agree with that; but, on the other hand, there would be great dangers in the defendant supplying the appropriate information to the prosecutor, because the prosecutor would almost inevitably pass it on to the police. In those circumstances, it would be almost impossible to keep the defendant's witness in a state of anonymity.
	This problem may be in part to do with the groupings. I passed my eye over them this morning and did not make any adverse observations, and it could well be my fault that my amendment has been misconstrued. It ought to be looked at in the context of my Amendment No. 4B, or Amendment No. 4C in the name of the noble Lord, Lord Lester of Herne Hill, or Amendment No. 9 in the name of the noble Lord, Lord Thomas of Gresford.
	We shall come to those amendments in another group; but they have a bearing on my Amendment No. 4 because, if the evidence goes directly to the judge, he will, as the noble Baroness rightly observed, in most circumstances. not have the resources at his disposal to establish the antecedents and other background matters in respect of the defence's proposal that one of its witnesses be given anonymity.
	This problem is solved in Amendments Nos. 4B, 4C or 9. If the judge can appoint an independent counsel to whom he can authorise the appropriate analysis of the defence information, including requiring all information relating to the proceedings that the defence is in a position to yield, in my submission the problem would be solved.
	There is a particularly apposite subsection in the new clause proposed in the amendment in the names of the noble Lords, Lord Thomas of Gresford and Lord Elystan-Morgan, which, I confess, adds much to my amendment. It states:
	"The independent counsel shall have power to require police officers unconnected with the relevant trial to investigate".
	That seems an extremely perspicacious observation and I am delighted to see it in the amendment in the name of the noble Lord, Lord Thomas of Gresford—which is not just by way of saying that I am not being party political.

Lord Lester of Herne Hill: Perhaps I may ask the noble Lord a question, as he has raised the issue that we shall come to later. He said that there would be one independent counsel, but, as he will see in Amendment No. 4C, the Joint Committee on Human Rights has indicated that in some circumstances one might, because of conflicts of interest, need a special counsel from the Attorney-General's panel to represent the interests of the defendant and a separate special counsel to represent the interests of the witness who is the subject of the application. Is the noble Lord including the possible need, in order to deal with that point, for two independent counsels?

Lord Kingsland: I apologise to the noble Lord, Lord Lester, for not making a more specific reference to his amendment. The proposal is extremely interesting. One might say that my amendment and that of the noble Lord, Lord Thomas of Gresford, could be described as having something of an inquisitorial nature. The amendment in the name of the noble Lord, Lord Lester of Herne Hill, sticks more traditionally to the adversarial system, for which there is much to be said.
	I would not want the noble Lord, Lord Lester, to think that I in any way underestimated his amendment by not mentioning it in detail. I shall have an opportunity to do so, if there is anything left to say, when we consider it in the context of the appropriate group.

Lord Thomas of Gresford: If the principle that we discussed in debating the amendment of the noble and learned Lord, Lord Lyell, is accepted by the Government—namely, that there should be open trial—the issue at the heart of all these amendments concerning getting a proper framework is the validation procedure referred to by the noble and learned Lords in the case of Davis. Is it enough for a witness to come forward and say, "I am frightened", and for the judge, perhaps not knowing his identity, to simply accept that, possibly on the basis of something that a police officer says about the circumstances in the area where the witness lives? Is that to be what the Bill is about or is it to be about rather more than that? Is it to be about an exception to the principle—the validation of the fears of the witness and a decision as to the circumstances that he puts forward for his fears, which the judge can then objectively assess?
	As I said at Second Reading, this problem has arisen because in small stages we had reached a point where, in effect, anonymity was being offered to witnesses by the police. I know that the noble and learned Baroness, Lady Scotland, has disputed that in her letter but—at times I try to speak from experience—it appears to me that the police do offer anonymity. Your Lordships will recall that I pointed out a headline that appeared in the Guardian a week last Saturday saying that the police guaranteed anonymity to a witness in relation to a specific case currently under investigation.
	We are told today that rules will be made about the validation procedure. We look forward to seeing those rules and to finding out how a fair validation procedure will develop. In an amendment, I objected to subsection (2) and simply inserted in its place:
	"The application shall be heard in Chambers".
	One assumes that, in any event, any such application will be heard in chambers, in camera or in some way, but that clearly has to be one of the procedural rules that are put forward. Because of that, I have no great reason to support my own amendment, as it will be covered by one of the rules.
	Then we have to consider the fairness as between prosecution and defence, to which the noble Lord, Lord Kingsland, referred. So far as I can see—and we have now been considering this matter in some depth and have had discussions about it over two or three weeks—the only way in which the respective interests of prosecution and defence can be properly supported is by the appointment of independent counsel, who can, as the noble Lord, Lord Kingsland, said, take a virtually inquisitorial role regarding the claims of the witness. They should not go through on the nod without any admissible evidence but simply on hearsay evidence or matters of that sort. The breach of principle is so serious a matter and so exceptional—the word used by the noble and learned Lords—that they should be properly investigated. They are to be investigated by proper procedures, which the rules that we are promised will set out, and we hope that they will be investigated by someone independent of both prosecutor and defence.
	The noble Lord will undoubtedly say—it is what his amendment says—that the prosecution has to know in order to instruct the police. That is not necessary. I am grateful to the noble Lord for supporting subsection (4) of the new clause proposed in my Amendment No. 9. It provides that police officers unconnected with the trial should be instructed by independent counsel to carry out investigation. Either we treat this as a serious, exceptional matter, contrary to principle, or we will return to the practice, which noble and learned Lords condemned in Davis as being contrary to the European convention, of allowing simple pieces of paper and unsubstantiated claims to result in defence counsel being completely unable to cross-examine witnesses because they do not know who they are, where they come from, what connections they have and so forth.
	All the amendments are interrelated in that way. At the core of it all is the validation procedure for a claim that a witness is in fear and requires anonymity and special measures. To that degree, I support the amendment.

Lord Marlesford: I am worried about the timing of the rules, which are clearly important. Will they be available immediately? Will Parliament look at them? Perhaps the noble and learned Baroness the Attorney-General could explain that to us.

Baroness Scotland of Asthal: I thank my noble friend Lady Mallalieu for tabling the amendment. She has highlighted a number of issues and has given us the opportunity to look at them and to give a better and proper explanation. I say straightaway that I agree with her on the importance of the prosecutor knowing the identity of each witness. Members of the Committee will know that the prosecutor's role is to present to the court any relevant information that may be available pertaining to the issues under discussion—both those which assist the defendant and those which assist the prosecutor. It would be very important for the prosecutor to be aware of the defence witness, as my noble friend Lady Mallalieu says, in order to make available any unused material that may assist the parties in the trial.
	Amendment No. 2 will require the court to be informed of the identity of the anonymous witness in all cases. We are clear that in the overwhelming majority of cases the court will be informed of the identity of the person in respect of whom an application for an anonymity order has been made. However, there will be the rare case in which the identity of, for example, an undercover agent—particularly a member of the Security Service—should be divulged to as few people as possible. In such cases, the prosecution will explain the circumstances to the court, and it would then be open to it to direct, if the judge so wished, that in that instance the application did not need to identify the witness concerned. It would be entirely up to the court to determine whether that disclosure should take place. I hope that that clarifies the position.
	The amendment overlaps with government Amendment No. 2A, and I thank my noble friend for understanding that in bringing it forward the Government were seeking to be helpful. We listened very carefully to the tenor and substance of the debate in the other place and here, and we were anxious to do the best we could to ensure that we had the appropriate level of coverage.
	Amendments Nos. 3 and 4, in the name of the noble Lord, Lord Thomas of Gresford, would require applications for anonymity orders to be heard in chambers. That means that the press and public would be excluded, but it does not mean that automatically a witness's identity would be protected from any other party. I am just pausing for a moment because this group included Amendments Nos. 3 and 4, but I am conscious that the noble Lord, Lord Thomas of Gresford, has not spoken to them.

Lord Thomas of Gresford: I indicated that in the light of the undertaking by the Government to bring forward rules of procedure, matters of this sort will be properly dealt with by the Criminal Procedure Rules Committee. I am satisfied that it would rule that applications should be heard by the judge alone or in whatever circumstances he thought fit. I virtually abandoned my Amendment No. 3 in the course of my remarks, and my Amendment No. 4 becomes otiose in the light of the Government's amendment.

Baroness Scotland of Asthal: I respectfully agree with the noble Lord, but I wanted to make sure that I was not presumptuously disregarding giving him the longer answer that he might have desired.
	Government Amendment No. 2A was largely designed for the avoidance of doubt and to prevent unnecessary legal argument about the effect of the emergency legislation that will come into force on Royal Assent. This amendment puts that matter beyond doubt, even following the abolition of the common law in relation to such applications. The identity of witnesses can be withheld from the defence before and during the making of an application for a witness anonymity order.
	To deal with the issue raised by the noble Lord, Lord Marlesford, there is separate procedure for court rules. I am sure they will be promulgated as quickly as the rules committee can make them. These detailed issues will be considered in due course. The rules committee has on occasion done things remarkably speedily if it has felt the matter is pressing. I would not like to speak on its behalf, but I am confident that it will use its best endeavours to get whatever rules may be appropriate out as speedily and as efficaciously as humanly possible.
	We then looked at how we deal with these matters practically. I have already explained the importance of dealing with the prosecution knowing the content of the witness identity. In these sorts of circumstances, it is not possible to get total parity of treatment because there is no duty on behalf of the defendant to disclose all unused and other material in the interests of justice to ensure that he is validly dealt with under the procedure.

Lord Kingsland: The fact that the defendant does not have a similar duty to the prosecution has never been the basis for an allegation that a trial is unfair—because the defendant has an advantage that the prosecution does not.

Baroness Scotland of Asthal: Absolutely not. I was simply underlining why they cannot be treated exactly the same. The duty that a prosecutor has to, in effect, be the Minister of Justice in proceedings and to make sure that all relevant issues are brought before the court differs markedly from the position that one properly should hold as defence counsel properly defending a defendant. That duty is very different.

Lord Kingsland: I completely accept that statement. Our contention—I say "our" because I assume that the noble Lords, Lord Thomas of Gresford and Lord Lester of Herne Hill, would agree with what I am about to say—is that the equality of arms would break down if subsection (1B) of government Amendment No. 2A were to go on the statute book—because of the obligation of the defendant in those circumstances to, in effect, reveal his identity to the prosecutor. That is the point at issue and is the basis for the proposals that all three of us have made in our amendments introducing an independent counsel.

Baroness Scotland of Asthal: We will turn to deal with the issue of special independent counsel in due course. The last time that this matter was before the House, I indicated that this question has wide ramification. The noble Lord, Lord Lester, asked: are we talking about one counsel or two? What is the role of that counsel? Will it have an investigative function? Which species of cases should special counsel apply to? All of those are interesting and complex issues and, in due course, we will be able to explore them but, for the moment, as I indicated last time we spoke about this, the case of H and C provides for an application of special counsel. Right away, these are complex issues; I very much doubt whether we will be able to resolve them finally within this emergency legislation; but we can have a good discussion about that when we come to the provisions in their place.

Lord Lester of Herne Hill: I am grateful to the Attorney-General. As she knows, at Second Reading I gave pretty broad support, as has the Joint Committee on Human Rights, to the Bill. I have this puzzlement, which is probably capable of being dealt with now. If we get this wrong and there are lots of mistrials and then a lot of applications under the Human Rights Act, we will have failed rather seriously.
	The principle of legal certainty means that the rules must be made and the guidance given to the trial judge in all the pending cases that have been stayed. We know that the rule committee acts swiftly, but I do not understand how any cases can go forward until the rules have been prescribed, in order that there is reasonable legal certainty and that the poor old trial judge will understand procedurally what she or he is to do.
	Therefore, what is to happen, given that it is clear from what the Attorney-General has told us that the draft rules are not ready for us to consider? What is to happen during the hiatus when no rules have been made and there are those pending cases? That is part of the concern of the noble Lord, Lord Marlesford, in his question. It seems to me to be not theoretical but urgent practically that we know exactly what will happen about the rules and what is to happen to the pending cases. Otherwise, we are into the territory not only of equality of arms, which has been raised by the noble Lord, Lord Kingsland, but the principle of legal certainty. The principle of legal certainty, as the noble and learned Baroness knows, is especially important in criminal justice. Can we get some clarification of that now?

Lord Thomas of Gresford: Before the noble and learned Baroness replies, may I add that the solution put forward at the moment about special counsel is that the court has the power to do that now; the noble and learned Baroness referred to the particular case. A judge in one case may appoint a special counsel to do one thing and in another may appoint special counsel under this common law provision to do something else. There is no guidance or certainty as to the role of the special counsel, if appointed under the common law power. Surely, as my noble friend says, certainty is the important thing. The judge who is trying the case should know what are the circumstances in which it is appropriate and what are the bounds of the duties that he is to lay on counsel.
	I know that we shall come to this later, but it is so much a part of everything, as the noble Lord, Lord Kingsland, said.

Lord Kingsland: I apologise for testing the noble and learned Baroness's legendary patience once more. Following on from what the noble Lord, Lord Thomas, said about the existence of an inherent rule—which I accept is used only rarely—for the court to appoint an independent or special counsel; and given his concern about different judges taking different decisions about this in similar circumstances; or even the same decisions where the judges may give very different instructions about the procedures which the court should follow, does the noble and learned Baroness believe that it is within the power of the Criminal Procedure Rule Committee, which was established under Section 70 of the Courts Act 2003, to establish a system of independent counsel, of its own volition, with a set of common rules on the procedure to be followed?

Lord Elystan-Morgan: I have a point to make that is quite apposite to the matter before the House. The Treasury Solicitor's A Guide to the Role of Special Advocates and the Special Advocates Support Office sets out the statutory and other bases for the use of special advocates. It says:
	UKHL 3, [2004] 2 AC 134 held that 'special counsel' (in effect a Special Advocate) might exceptionally be appointed in a criminal case. The House held however that such an appointment will always be exceptional, never automatic; a course of last and never first resort; and should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant".
	There is some dubiety about the role of special advocate—I pointed out at Second Reading the passage in Archbold in which the learned editor says that this discretion should be used sparingly—but the situation is even worse than that. It seems that the House of Lords has circumscribed the very circumstances in which such a discretion should be used.

Baroness Scotland of Asthal: I thank the noble Lord, Lord Elystan-Morgan, for bringing that to our attention, and I put on record my apology to him for not dealing with his erudite and thoughtful comments at Second Reading, particularly on this issue.
	I do think that we have a perfectly sound way forward, but my understanding of this issue is as follows. The rule committee will be asked to look urgently at this matter, as I indicated earlier. I understand that it is to meet on Friday. In the mean time, there is sufficient power under Rule 3.5, the current criminal procedure rule that deals with the court's case management powers, to enable the courts to give case management directions now to deal with applications pending the making of further rules. In addition, the courts now have the power to ask the Attorney-General—in this instance, me—to appoint a special counsel to assist where necessary. We will of course take into account the strictures which the Judicial Committee properly made about its sparing use and propriety.
	To return to the point made by the noble Lord, Lord Lester, we must of course bear in mind that the fairness of trials is of primary importance. If the court were to conclude that special counsel was necessary, it would have to be carefully and appropriately considered case by case.
	In answer to the noble Lord, Lord Kingsland, the rule committee has the power to make rules governing practice and procedure in the criminal courts, and it appears that if the court felt it appropriate, that power would extend to an express power to ask the Attorney-General to appoint special counsel. But that would be a matter for the committee and would depend on the precise functions of those counsel. We have an interesting issue with which to grapple at the moment, which was amply explored earlier in this debate by the noble Lord, Lord Lester, who asked whether it could be one or two counsel, and by others who asked about the framework within which this would be looked at. We would have to consider what type of cases might need special counsel.
	As I said earlier, I do not think it would be likely that many would consider the test purchase case to need special counsel. We may need to talk together about the ambit of any such rule, not that I am at this stage giving any indication about what our final position may be. It is absolutely clear that this issue needs discussion, thought and debate.

Lord Lester of Herne Hill: I am sorry again to tax the Committee's patience, but we are replacing the flexible common law judicial discretion case by case with a system of statutory rules. But we do not have any statutory rules on procedure yet. Will what the noble and learned Baroness has said apply to magistrates' courts? Are the powers sufficient to deal with them?

Baroness Scotland of Asthal: The Criminal Procedure Rules now deal with rules in relation to all courts, so I am sure that these issues will be looked at. My reasonable expectation is that it will be the rare case that is likely to be dealt with in the magistrates' court; perhaps a control order case, et cetera. The noble Lord will know that quite often in those cases we already have special counsel for other reasons. I do not think in the ordinary case that that would happen, but in those special cases that might need to be dealt with, it would probably be covered.
	I believe that we have a basis to go forward immediately because of Rule 3.5 and the case management. I would remind the Committee that in the case of Davis the court had the benefit in the Court of Appeal of special counsel because it was considered to be merited. It is unfortunate that no reference appears to have been made to that facility having been given to the Court of Appeal and it is not referred to in the House of Lords' Judicial Committee's judgment. I sincerely hope that it was aware of that benefit when it made its judgment.

Lord Richard: Perhaps my noble and learned friend could help me. What amendment are we supposed to be discussing? It seems that the groupings have got so muddled that I at least am totally lost.

Baroness Scotland of Asthal: I take very much to heart my noble friend's stricture. We are discussing Amendment No. 2A, on which, I would respectfully say, we are all in agreement. But we have trespassed way into special counsel and the groups have merged. I apologise wholeheartedly for having been seduced into that error by the noble Lords, Lord Kingsland, Lord Lester and Lord Thomas of Gresford. I should have been far more wary.

Lord Lloyd of Berwick: I just hope that we will not have to discuss those matters again.

Baroness Mallalieu: It is scarcely surprising that we have strayed from the grouping. It is necessary to grasp at straws, such as the special counsel, in order to begin to make this legislation look fair to the defence. I do not want to sound churlish because my Amendment No. 2 effectively is covered by government Amendment No. 2A, although I would have preferred the words,
	"unless the court directs otherwise",
	to have been omitted. It must be the very first principle of this legislation. I do not want to go back to our debate on Second Reading; the noble and learned Baroness knows well my views on the Bill as a whole, which are that we should not be doing it in the first place. But as we are, the first principle should be that the judge is in possession of all the facts. For my part, I cannot imagine a situation in which a judge worth his salt would say, "I don't want to know", although I suppose it is possible that such a thing might happen at a theoretical point in the future. I therefore welcome the government amendments and beg leave to withdraw Amendment No. 2.

Amendment, by leave, withdrawn.

Baroness Scotland of Asthal: moved Amendment No. 2A:
	Clause 3, page 2, line 26, leave out subsection (2) and insert—
	"(1A) Where an application is made by the prosecutor, the prosecutor—
	(a) must (unless the court directs otherwise) inform the court of the identity of the witness, but(b) is not required to disclose in connection with the application—(i) the identity of the witness, or(ii) any information that might enable the witness to be identified,to any other party to the proceedings or his or her legal representatives.
	(1B) Where an application is made by the defendant, the defendant—
	(a) must inform the court and the prosecutor of the identity of the witness, but(b) (if there is more than one defendant) is not required to disclose in connection with the application—(i) the identity of the witness, or(ii) any information that might enable the witness to be identified, to any other defendant or his or her legal representatives.
	(1C) Accordingly, where the prosecutor or the defendant proposes to make an application under this section in respect of a witness, any relevant material which is disclosed by or on behalf of that party before the determination of the application may be disclosed in such a way as to prevent—
	(a) the identity of the witness, or(b) any information that might enable the witness to be identified,from being disclosed except as required by subsection (1A)(a) or (1B)(a).
	(1D) "Relevant material" means any document or other material which falls to be disclosed, or is sought to be relied on, by or on behalf of the party concerned in connection with the proceedings or proceedings preliminary to them."
	On Question, amendment agreed to.
	[Amendments Nos. 3 to 4 not moved.]

Baroness Scotland of Asthal: moved Amendment No. 4A:
	Clause 3, page 2, line 32, at end insert—
	"( ) Nothing in this section is to be taken as restricting any power to make rules of court."
	On Question, amendment agreed to.

Lord Kingsland: moved Amendment No. 4B:
	Clause 3, page 2, line 32, at end insert—
	"( ) For the purposes of considering an application for a witness anonymity order the court may appoint an independent counsel to assist the court, and, without limiting the directions that the court may make, the court may direct the independent counsel—
	(a) to inquire into the matters that are set out in sections 4 and 5 and any other matters that the court may think relevant, and(b) to report his findings to the court.
	( ) Where an independent counsel has been appointed, the party who applied for the witness anonymity order must make available to the independent counsel all information in relation to the proceedings that is in the party's possession.
	( ) The Criminal Procedure Rule Committee, established under section 70 of the Courts Act 2003 (c. 39), may make rules of court for inquiries to be made by independent counsel."

Lord Kingsland: I have said everything that I need to say in support of this amendment. There are, however, two other amendments in this group whose promoters may not share my view of this amendment with respect to theirs. I beg to move.

Lord Lester of Herne Hill: In speaking to this amendment, perhaps I may speak at the same time to Amendments Nos. 4C and 9. Amendment No. 4C is tabled in my name and in the names of the noble Baroness, Lady Stern, and the noble Lord, Lord Morris of Handsworth, both of whom are very sorry that they cannot be here today. We have tabled the amendment as members of the Joint Committee on Human Rights. Thanks to the industry and skill of its staff, the committee has managed to produce at record speed a report on this Bill which became available this morning. I shall not go through it, but I refer to noble Lords to it.
	The report as a whole essentially follows what was said in the other place by the chair of the committee, Andrew Dismore, MP, and by myself at Second Reading in this House. None of that needs to be repeated, but paragraph 1.33 states:
	"We recommend that the Bill should be amended to give the trial judge a discretion to appoint special counsel to represent the interests of both the accused and the witness at hearings for anonymity orders. This would also address the problem that the magistrates' court may have no power to appoint special counsel".
	I hope that the committee gets high marks for brevity and that similarly the amendment gets high marks for lack of prescriptive detail. The idea behind it is to ensure that there is a broad discretion, leaving it essentially to the Criminal Procedure Rule Committee to fashion particular rules. We do not have any particular dogmatic preference for the amendment moved by the noble Lord, Lord Kingsland, for the amendment tabled by my noble friend Lord Thomas of Gresford, or even, for that matter, for this one—as long as the pith and substance of what is proposed in the three amendments is given effect.

Lord Thomas of Gresford: I shall speak to Amendment No. 9. I think that I have already fully outlined the principles I wish to support, but I want to draw attention to the detail. My amendment would require that:
	"The party applying for the witness anonymity order must disclose to the independent counsel all information relating to the proceedings that is in that party's possession".
	There should be a duty on that person to make full disclosure. As we have commented before, the question of the investigation by the independent counsel includes a,
	"power to require police officers unconnected with the relevant trial to investigate and to report to him whether there are any matters ... which should be drawn to the attention of the court".
	That is really what an independent counsel should do in its role.
	We suggest that the role of independent counsel would be to examine or cross-examine a witness who claims that he is in fear if there is any doubt about it, or about the circumstances he refers to, or about his honesty or dishonesty generally, for the purposes of assisting the court in coming to its conclusion. It is necessary to repeat that paper applications, which became prevalent, must cease. This is exceptional and it must be treated in an exceptional way. Proper investigation should be carried out and the verification procedure should be set out in the Bill.
	I also repeat that leaving it to the judge to invent his own procedure under some common law inherent power to appoint special counsel is unsatisfactory. The procedure could vary from judge to judge and could be ultimately the subject matter of appeals.

Lord Elystan-Morgan: I agree with the remarks of the noble Lord, Lord Thomas of Gresford. The basic sacrosanct principle is not of necessity the question of special counsel or any other special power given to the judge; it is that no judge should be expected to decide on such weighty measures without being thoroughly apprised of the factual matrix upon which he is making his decision. If that can be achieved in a way other than by appointing special counsel, that would be splendid. However, the appointment of special counsel would serve a dual role. One role would be advocatory—in other words, at a preliminary stage in the trial it would be possible to conduct such advocatory measures as are required—and at the same time it would arm the court with powers of an investigatory nature.
	I am sure that the Government could do worse than to study in detail—I appreciate time is short—Section 115 of the New Zealand Evidence Act 2006, where this is all set out. Much of the Bill comes from that Act and it would have been appropriate for that to have been incorporated as well. In relation to special counsel, we should ask ourselves not whether such an appointment should be exceptional but whether there is any reason why it should not be done in each and every case if the judge is to be apprised of the information which is so vital to the decisions that he has to make under Clauses 4 and 5. Put another way, can you imagine, before the decision in the Queen and Davis last month, any conscientious judge—I have no doubt that every judge is conscientious—looking at the situation and coming to a conclusion without having studied each and every one of those headings seriatim? If the judge has to arrive at some of these decisions—and inevitably it would be the case—to some extent by way of judicial guesswork, that is not good enough. To leave a judge without the wherewithal to obtain this information would be like making a ship without a keel and a bottom. It is essential that that machinery is there at the judge's discretion and disposal.
	All we are doing in the first instance is legitimating by way of statute what was illegitimate under common law and had been for the past 15 years or so. We can do that because we are sovereign. The old saying is that you can do anything by an Act of Parliament except make a man a woman or a woman a man, although I am not sure that that stricture applies in all cases nowadays. All we would be doing would be placing on a technical basis what had been unjust previously; we would not be curing the injustice. The injustice is cured not by the grist of the provisions in the Bill but by the willingness to give the judge the necessary tools for the proper administration of justice in such cases.

Baroness Mallalieu: I support what the noble Lord, Lord Elystan-Morgan, has just said. We should not lose sight of the fact that the Bill comes into force on the day it is passed, which could be very swiftly. Judges will have to deal, under the provisions of Clause 10, with proceedings that are already part-way through. No doubt there is going to be a flood of applications to review the orders that have already been made. Judges will be under pressure to deal with them as soon as possible so that people can prepare for the trials that are in the pipeline, and they are going to be asked to do it well before the rules committee has begun to produce the necessary guidelines. If we pass this emergency legislation without giving the judiciary the tools they will undoubtedly need desperately in the next few months, then in my view we are not doing the job we should be doing.

Baroness Scotland of Asthal: I thank noble Lords for their brevity, particularly the noble Lord, Lord Kingsland, for his telegraphic delivery with regard to this amendment, which we have spent some time discussing. I say to the noble Lord, Lord Lester, that indeed the committee gets extremely high marks for brevity and the lack of prescription in the detail—albeit that I am not able to assent to the amendment at this stage.
	The noble Lord, Lord Elystan-Morgan, makes a good point when he says that we need to look at making sure that the information before the judge is such as to enable him to make an informed decision, that it may not necessarily be that the special counsel is the only way forward, and that there may be other ways and we need to consider that. I assure him that we are looking at the provisions of the New Zealand legislation on which the amendments are based and trying to find out how they operate in practice. I told the House at Second Reading that I had the privilege of meeting New Zealand Associate Minister of Justice Lianne Dalziel in Edinburgh, and we are seeking to get as much information as we can about how the legislation operates in that country.
	It is important that we understand that these amendments seek to establish a statutory scheme for the appointment of special counsel in relation to witness anonymity applications. In Amendments Nos. 4B and 9 the scheme is based on the New Zealand model, but the structure that is adopted there is significantly different from our own. Therefore, we need to be appropriately cautious about that. The wording of the amendments themselves and our earlier debate demonstrate the difference there may be in the way in which we approach this matter, and what may or may not be necessary. It is important to acknowledge that this is not the only situation in which a statutory scheme is present. The appointment of special counsel in this situation is therefore particularly complex because at present we have at least one statutory scheme alongside the common law. Before bringing forward any statutory provision we will want to be satisfied about the correct role of a special advocate in anonymity proceedings. As I said, it was worth pointing out the difference between the way in which the noble Lord, Lord Lester, put forward the role and the noble Lord, Lord Thomas of Gresford, expressed the role. There is no reluctance at all to introduce a statutory scheme if that scheme would appear to be the most appropriate, but we need to give the matter further careful consideration.

Lord Lester of Herne Hill: The noble and learned Baroness the Attorney-General has not explained what is wrong with Amendment No. 4C. She has simply said that the Government do not accept it. From what she has said so far, I do not understand why. The amendment does not prescribe a statutory scheme; all it does is give the court an express power to appoint special counsel from the Attorney-General's panel. What is wrong with that? Is it that it is unnecessary because there is ample power to do it already, and therefore this is, as lawyers say, otiose? Or is it that in some way it conflicts with settled government policy, or that the Government have not decided the policy? We need to know so that I can tell the committee why the Government do not accept the amendment.

Baroness Scotland of Asthal: We believe that at the moment, as a result of H and C and the current framework, it is possible—the court has the power—to invite the Attorney-General to appoint a special counsel if it is deemed that that is necessary and appropriate. We can already do that. Now we have the opportunity to look at special counsel, it is important to consider the nature of when they should be appointed, what the nature of the appointment should be and how it should be contained. There will be some not inconsiderable cost implications; I am not suggesting that that will be in any way determinative, but we will have to consider the best way of using these facilities and hone down, if we can, when and the type of case that might be necessary.
	Let me say as gently as I can that this is emergency legislation. We are incredibly grateful for the speed with which the committee has considered it. We will take carefully into consideration what is said; we notice the nuanced differences between what the committee, the noble Lord, Lord Thomas of Gresford, and, indeed, the noble Lord, Lord Kingsland, have said. Quite frankly, we want to get this right.
	If we did not have H and C as well as a power for the court to invite the appointment of special counsel, we would consider whether the sort of amendment proposed by the noble Lord, Lord Lester, would be the way forward, because it would be appropriate for us to meet that gap. However, we do not have such a gap at the moment; we have a little more time to look at this and when we do, we will be able to discover whether the current scheme, which is non-statutory, suffices and can be expanded. Alternatively, we may come to the conclusion—bearing in mind that in part we have a statutory scheme and in part a common law scheme—whether a different arrangement and configuration might be necessary. That is all we are saying at this stage. Because this is emergency legislation, we should pause and get it right in case it is misconstrued that what we have done under the cloak of the legislation is create a statutory scheme which would then put in question whether in other circumstances—other criminal proceedings—the common law opportunity for the court to appoint a special counsel was no longer there. I know that that is not what the committee or the noble Lord, Lord Lester, would wish.
	The noble Lord, Lord Elystan-Morgan, is right that it is not necessarily a question of this course and no other. There may be other things we can do better to inform the court. In later amendments we will look at the guidelines that the DPP may wish to put forward and the guidance that I, as Attorney-General, may wish to give. There may be a number of things we should do to make sure that these cases are properly dealt with.

Lord Thomas of Gresford: I do not know what the noble Lord, Lord Kingsland, will do, but I shall seek the opinion of the Committee on my amendment in any event. It is necessary to have a proper framework rather than leaving it to the individual judge to decide the scope and powers of the special counsel that he seeks to appoint.
	I have made this point before and I do not need to repeat it. It is very important to give guidance to judges on how to operate this common law power and not leave it in mid-air. Better to have a scheme that is clear now and change it if it proves ineffective or leads to an unfair trial, or even if it is too expensive. We can change it when we are considering the new provisions to be introduced rather than leave it up in the air, in the way that the noble and learned Baroness suggests that the Government will do.

Lord Richard: Not for the first time in my political life, I am absolutely bemused by the attitude of the Liberal party. Is the noble Lord seriously suggesting that he will divide the Committee on an amendment when we have had a discussion whose main feature has been comity across the party lines and consensus? Does he not consider that this is emergency legislation? Does he also not consider that if his amendment were passed—I do not think that it will be; he does not think that it will be either, in which case it is an exercise in demonstration rather than anything else—it would have to go down the other end again and come back up here? We might even be playing ping-pong between the Houses when this is urgent legislation which everybody is agreed is needed. The noble Lord would be doing himself and his party a grave disservice, let alone that which he would be doing to the country.

Lord Elystan-Morgan: While I have every sympathy with the amendment, which has been drafted very carefully by the noble Lord, Lord Thomas of Gresford, and to which I was very proud to attach my name, given in the circumstances, and bearing in mind the way in which the noble and learned Baroness the Attorney-General has reacted to this matter, I would not dream of supporting him in a Division.

Lord Thomas of Gresford: I was given an interesting rebuke by the noble Lord, Lord Richard, and I understand the position from which he speaks, but there are times when we in our party wish to make it clear where we stand on a particular interest, of which this is one. We are perfectly entitled to do that. He shakes his head impatiently, but he is playing a different kind of politics from that which we practise on our side of the Committee.

Lord Kingsland: In the debate on this group of amendments, I have become something of an innocent bystander—at least, some might say that it is in my self-interest to portray myself in that disguise.
	As the noble and learned Baroness must know, I am extremely sympathetic to the amendments of both the noble Lords, Lord Thomas of Gresford and Lord Lester of Herne Hill. However, as I said on Second Reading, due to the undertakings that the Government gave then, and have reinforced during debate on this group, I shall not feel able to support the noble Lord, Lord Thomas, in the Lobby when he puts forward his Amendment No. 9; but he should not deduce from that in any way that I do not agree with it in every respect. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Lester of Herne Hill: had given notice of his intention to move Amendment No. 4C:
	Clause 3, page 2, line 32, at end insert—
	"( ) For the purposes of considering an application for a witness anonymity order the court may appoint special counsel from the Attorney General's Panel of Special Counsel to represent the interests of the defendant and separate special counsel to represent the interests of the witness who is the subject of the application."

Lord Lester of Herne Hill: I shall not move the amendment. I say that on behalf of my committee and I shall act in accordance with what I think is its view.

[Amendment No. 4C not moved.]
	Clause 3, as amended, agreed to.
	Clause 4 [Conditions for making order]:

Lord Kingsland: moved Amendment No. 4D:
	Clause 4, page 2, line 36, leave out "C" and insert "D"

Lord Kingsland: I shall speak also to the other amendments in this line. The operative amendment in it is Amendment No. 6A. Amendments Nos. 4D, 7D and 8B are consequential upon it.
	The amendment would add a further condition, D, to the conditions for making an order for anonymity set out in Clause 4. Your Lordships will recall that condition A refers to making an order for anonymity only if it is necessary to protect the safety of the witness or to prevent real harm to the public interest. Condition B is that,
	"having regard to all the circumstances, the taking of those measures"—
	the anonymity measures—
	"would be consistent with the defendant receiving a fair trial".
	Condition C is that,
	"it is necessary to make the order in the interests of justice".
	Clause 5 has the heading "Relevant considerations" and states that when the judge is,
	"deciding whether Conditions A to C in section 4 are met in the case of an application for a witness anonymity order, the court must have regard to",
	certain considerations, which are,
	"the considerations mentioned in subsection (2) below, and ... such other matters as the court considers relevant".
	If noble Lords run their eyes down Clause 5(2)(e), they will see, in effect, the text for my Amendment No. 6A. I am seeking to take paragraph (e) out of Clause 5 and promote it to Clause 4—and my reason for doing so is by now, I think, very obvious. If the court has,
	"reason to believe that the witness ... has a tendency to be dishonest, or ... has any motive to be dishonest in the circumstances of the case, having regard",
	to certain factors, that should be that. It should be one of the conditions that is required to be met before an order for anonymity is granted. I do not think that I need to add anything to what I have said. I beg to move.

Viscount Bledisloe: I am slightly puzzled by this amendment. I fully accept that if the court has a reason to believe the things set out in Amendment No. 6A, that would certainly be a reason why the order should not be made. But surely the main problem about anonymity is that one will not know that there is any motive to be dishonest or what the relationship is between the witness and the defendant or his associates. That is the problem that anonymity creates.
	I am worried whether, if this condition is in the Bill and the court says that there is no reason to believe this, it will be taken by implication as a finding that, in fact, there is no reason to believe that the witness is dishonest or has motive to be dishonest, when, if only the accused knew who it was, he would be able to say, "Well, of course he has a reason for doing me in—he is sleeping with my wife! He wants me away in prison so he can get on and do that with impunity". That is just an example. Until he knows who the witness is, he cannot say things like that. What worries me is whether that makes it any more likely that someone will say that the court considered that and saw no reason to believe these things, and that therefore they do not exist.

Baroness Scotland of Asthal: I understand the noble Viscount's concerns. I do not think that the amendment proposed by the noble Lord, Lord Kingsland, assists.
	These amendments would change the conditions for making a witness anonymity order, which are set out in Clause 4. Amendment No. 6A would make the witness's credibility—currently a consideration that the court must take into account, as set out in Clause 5(2)(e)—into a fourth condition for making a witness anonymity order. I accept that Amendments Nos. 4D, 7D and 8B are consequential.
	I suggest to the noble Lord, Lord Kingsland, that the amendment is unnecessary because the consideration of credibility goes to the question of whether the defendant will have a fair trial. That is already secured by condition B in making an order, as set out in Clause 4(4). Furthermore, conditions A to C set out the high-level principles—necessity, fair trial and interests of justice—for the court to apply, whereas the credibility of a witness is an aspect of assessing the second condition, which is fair trial. We believe that it sits correctly among the considerations in Clause 5.
	We do not think that the amendment does what the noble Lord wishes and that the way it is expressed does precisely what he wants in terms of spearing the mischief that he is most concerned about. Therefore, we believe that the clause as currently expressed accurately enables justice to be done and a fair trial to be obtained, and makes it clear that the safety of the witness is the primary consideration, or certainly comes first in terms of necessity. I remind the noble Lord that Clause 4 starts with "necessary" and then establishes conditions A, B and C. Subsection (6) in relation to fear relates to condition A.

Lord Kingsland: I am most grateful to the noble Viscount, Lord Bledisloe, and the noble and learned Baroness for their responses. I agree with him that if a judge is not in a position to make that assessment, and there may be circumstances in which he is not, that poses a difficulty to my amendment. However, if we assume that the proposals put forward by the noble Lord, Lord Thomas of Gresford, and myself become part of the procedures of the future Act, then it is highly unlikely that the judge will ever find himself in that position.
	I must say that I am surprised at the noble and learned Baroness's response. The judge is obliged to consider considerations (a) to (e) but the weight he puts on them is entirely a matter for him. The judge may have reason to believe that the witness is a liar, but he may conclude that in the context of a fair trial this is of little consequence. I would be extremely surprised if that were the case. However, there is no doubt that that will be the case from time to time if the Bill becomes law in its present form. If a judge reaches a conclusion that a witness is capable of lying or likely to lie, it should be inconceivable that a witness be granted anonymity. That is the reason I tabled my amendment.

Lord Lloyd of Berwick: I am puzzled by a small drafting point in the amendment. Presumably it should read "Condition D is that the judge has no reason to believe". Perhaps I have an out-of-date copy, but it does not make much sense as it stands. I am trying to be helpful.

Lord Kingsland: I quite understand. The noble and learned Lord may have pointed out a valid drafting point. I always hope that the merits of any amendment that one tables overcome the technical incompetence in the drafting. However, my experience in your Lordships' House, at least as far as the Government are concerned, is that hope springs eternal.
	My amendment does not seem to have excited great interest among those who have been intervening consistently in the course of the other groups. I feel strongly that this consideration ought to be promoted to a condition. However, in the circumstances in which we find ourselves, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kingsland: moved Amendment No. 4E:
	Clause 4, page 2, line 39, leave out "safety of the witness or another person" and insert "witness or another person from death or serious injury"

Lord Kingsland: The amendment takes us into the territory of Clause 4 in a little more detail. It would recast Clause 4(3)(a), which states:
	"Condition A"—
	we are back to conditions—
	"is that the measures to be specified in the order are necessary ... in order to protect the safety of the witness or another person".
	It goes on with the subject of my second amendment,
	"or to prevent any serious damage to property".
	My recollection is that when the Government produced an initial draft of the Bill, they had inserted the words of my own amendment,
	"or another person from death or serious injury".
	That is the expression used in the New Zealand legislation of 2006. Whether I am correct or incorrect about this, I submit that the correct expression is,
	"or another person from death or serious injury".
	The expression "safety of the witness" is in any case too vague and, moreover, too low a hurdle in the context of Clause 4.
	Amendment No. 4F refers to the other part of subsection (3)(a),
	"or to prevent any serious damage to property",
	and adds, "or serious financial loss". Amendment No. 7A, the other amendment of real substance to which I shall refer, takes us to Clause 4(6):
	"In determining whether the measures to be specified in the order are necessary for the purpose mentioned in subsection (3)(a), the court must have regard (in particular) to any reasonable fear on the part of the witness—
	(a) that the witness or another person would suffer death or injury, or(b) that there would be serious damage to property".
	The noble and learned Baroness may help me on a matter of interpretation here. My concern is that, under the subsection as drafted, there is no sufficient guarantee of objectivity when assessing whether the witness's fears are reasonable. Therefore, I tabled Amendment No. 7A to make it absolutely clear that the court must assess the reasonableness of any fear alleged on the part of a witness or another person. The noble and learned Baroness may be able to reassure me that that is the effect of subsection (6). However, I should be most grateful if she could clarify it, either in that direction or otherwise. I beg to move.

Lord Thomas of Gresford: I wish to speak to Amendments Nos. 6 and 7, which stand in my name. The noble Lord, Lord Richard, was uncharacteristically uncharitable when he failed to appreciate the time that the noble Lord, Lord Kingsland, I and other members of our parties have put in to try to get this framework right. We attended meetings, and significant developments and changes to the Bill have occurred as a result of those discussions, as, indeed, the noble Lord, Lord Hunt—

Lord Richard: I am delighted to see that the noble Lord is a bit more emollient. Perhaps I can be as emollient as he is. Of course, I am not suggesting that he has not done a lot of work, as he clearly has. I am suggesting that he should not vote. That is all.

Lord Thomas of Gresford: We differ on that. I give that introduction as this is an attempt to improve the Bill. Clause 4(6) states that,
	"the court must have regard (in particular) to any reasonable fear on the part of the witness".
	I do not understand why that should be included in subsection (6) as a consideration for the court when Clause 5 sets out a whole series of relevant considerations. It seems to me that it is preferable to take out subsection (6) and to add the heart of it to subsection (5), so that subsection (5)(b) would read,
	"the witness would not testify if the order were not made by reason of a well-founded fear on the part of the witness that—
	(i) the witness or other person would suffer significant injury, or
	(ii) that there would be serious damage to property, if the witness were to be identified".
	To use the words of the noble Lord, Lord Kingsland, this would merely promote the concept of concern or fear on the part of the witness to a different position in the Bill.
	One can argue about the concept of reasonable fear. I suggest to the noble and learned Baroness the Attorney-General that well-founded fear, which suggests that there is an objective basis for that fear, is perhaps a better way of expressing what we are trying to get at; that it should be a fear founded on something, not an irrational fear. I do not see any point in including death in the concept of fear. Surely it is enough if a person fears suffering significant injury, as I propose in paragraph (i) of Amendment No. 6. My purpose is to try to improve the Bill. I hope that the noble and learned Baroness will take it in that spirit.

Viscount Bledisloe: I strongly support either Amendment No. 6 or Amendment No. 7A. I shall not enter into any comparative beauty contest between the noble Lords who spoke to them, but what is undoubtedly needed is a requirement that the witness has not only a fear, but has a justified, well-founded and reasonable fear. Whichever words are used, one certainly needs one amendment or the other.

Lord Hunt of Kings Heath: I certainly accept that the amendments spoken to by the noble Lords, Lord Thomas and Lord Kingsland, are meant to inform and be helpful. Let me say at once that although the Bill as it presently stands meets the points perfectly clearly, I understand the safeguards that noble Lords are seeking.
	Amendment No. 4E, as the noble Lord, Lord Kingsland, suggested, would change the first limb of condition A for granting a witness anonymity order from protecting the safety of the witness or other person to protecting a witness or another person from "death or serious injury". The main impact of the change would be to require the court to decide if the type of injury from which the witness might be at risk was serious enough to justify granting an order, whereas "safety" is broad enough to cover any form of risk of harm to the safety of the witness.
	I understand the point that the noble Lord, Lord Kingsland, raised about his fear of definitions that may be too vague or provide a hurdle that is too low. I would say to him that witnesses should not be exposed to the risk of any form of harm. Whether the risk of a particular level of harm to which the witness is exposed in any particular case is sufficient to compromise their safety, and thus justify the making of an order, is surely a matter for the court when it addresses the critical three conditions set out in this clause. I fully understand the risk of frivolous fears or the lack of objectivity that might be made in such a judgment. The critical importance of Clause 4(6) in relation to condition A, as the noble Lord, Lord Thomas, said, is that the court,
	"must have regard (in particular) to any reasonable fear on the part of the witness".
	The term "reasonable" gives the comfort that noble Lords require.
	Amendment No. 4F adds "serious financial loss" to the reference to serious damage to property in condition A, and Amendment No. 7C makes a similar change to the reference in subsection (6) to the witness's fear that there would be serious damage to property. I am not sure that there are ways in which a witness could be put in fear of financial loss that would not involve serious damage to property. If there are, we certainly have not thought it necessary to include them in the current Bill. The reference in condition A to "serious damage to property" is intended to capture physical damage to physical property; for example, the fire bombing of a witness's house or car. I can see there may be an argument for extending this to cover "serious financial loss", but the issue is not straightforward. There is a balance to be struck, and it is noticeable that the JCHR in its report flagged up questions as to whether the property consideration should be in the Bill at all. Perhaps I can invite the noble Lord, Lord Kingsland, to look again at the property limb of condition A before legislating afresh in the fourth Session.
	The amendment in the name of the noble Lord, Lord Thomas of Gresford, would leave out subsection (6) of Clause 4, which sets out matters to which the court is required to have regard in deciding whether the measures in the order are necessary for the purpose in subsection (3)(a). As we have already discussed, that purpose is the necessity,
	"to protect the safety of the witness or another person or to prevent any serious damage to property".
	Amendment No. 6 adds well founded fear of death, serious injury or serious damage to property as considerations to which the court is to have regard in deciding whether condition C—whether the witness would not testify—is met. As the noble Lord, Lord Thomas, has observed, we have structured the Bill rather differently. Condition A requires the court to consider whether it is necessary to make the order to protect the safety of the witness. We believe that that clearly requires the court to draw an objective conclusion about the safety of the witness. It is clear that in order to reach such a decision the judge will need to access information about the safety of the witness.
	As I have said, Clause 4(6) provides that, in reaching a decision, the judge must have regard to any reasonable fear on the part of the witness relating to his safety. This simply means that the court must take account of information from the witness relating to his fear that he would suffer death or injury if his identity were revealed. We have used the term "reasonable fear" to allow the court to disregard irrational fear expressed by the witness. It will of course be for the court to make a judgment and, if it is satisfied that the fear expressed by the witness is reasonable, that will be taken into account by the judge in deciding whether it is necessary to protect the witness or another person or to prevent serious damage to property.
	Clause 4(6) expressly relates to Clause 4(3)(a) and not to Clause 5 and condition C. The reason is that in Clause 4(6) we are talking about the witness's fear of death or injury or of serious damage to property if his identity is revealed and not about his fear of giving evidence per se. Therefore, we think that the Bill's current construct is satisfactory. It is also important to recognise that condition A has to be taken in conjunction with Clause 4(6) and the fact that the court has to have regard to any reasonable fear on the part of the witness.

Lord Kingsland: I am most grateful for the response of the noble Lord, Lord Hunt. Our view is simply that Clause 4(3)(a), even in the context of subsection (6), is, as I said in my opening remarks, too low a test for the court to apply. Indeed, that is true not just of the expression in Clause 4(3)(a) but of the expression in Clause 4(6)(a), which refers not to "serious injury" but just to "injury".
	I am grateful to the Minister for agreeing to consider the words "or financial loss" at some later legislative stage. It is not hard for me to find examples of serious financial loss. For example, someone may be in possession of a very valuable item belonging to the witness—a picture or an item of furniture—and may threaten either to destroy it or to sell it into the market. I admit that destruction would be covered but not disposal by any other means. Alternatively, the person threatening the witness may owe the witness a great deal of money, which he says he will refuse to pay if the witness gives evidence. In my submission, those are serious considerations.

Lord Hunt of Kings Heath: I do not doubt that those matters require careful consideration. I pray in aid the report of the JCHR; we are rather cautious about widening the definition at this stage. I hope that the noble Lord will allow us to undertake further work in this area and discuss it with him and other noble Lords.

Lord Kingsland: I am most grateful to the Minister. I find the Government overcautious in some parts of the Bill and overambitious in others. My concern is that they may not have them in the right order.

Lord Hunt of Kings Heath: We feel the same about the Opposition.

Lord Kingsland: Surely not. The most important matter that I am seeking to establish in this group of amendments is that contained in Amendment No. 7A. From what the Minister has said in reply, my understanding is that, in effect, the expression,
	"the court must have regard (in particular) to any reasonable fear on the part of the witness",
	would require the court to make an assessment of reasonableness. That would have to be an important component in what the court undertakes. The Minister appears to me to have confirmed that already; but he may wish to confirm it again. I take it that he said that and, in those circumstances, I beg leave to withdraw the amendment, satisfied that discussions on this line have not been in vain.

Amendment, by leave, withdrawn.
	[Amendment No. 4F not moved.]

Viscount Bledisloe: moved Amendment No. 5:
	Clause 4, page 3, line 2, after "measures" insert ", whether on their own or in combination with the measures specified in other witness anonymity orders made or applied for in those proceedings,"

Viscount Bledisloe: I shall speak also to Amendments Nos. 8 and 12, which deal with the same mischief, a lacuna in the Bill, which is not at all surprising in light of the speed with which it has had to be drafted.
	In the Davis case, there were to be three witnesses, each of whom said that they had seen the accused shoot. A single application was made for anonymity in respect of all three witnesses and it was granted. When your Lordships' Appellate Committee was considering the matter, it looked at the cumulative effect of anonymity given to the three witnesses who comprised the totality of the evidence against the accused. Not surprisingly, it came to the conclusion that, if the totality of the evidence was to be given by anonymous witnesses, of whom one had no opportunity to find out why they might choose to implicate the defendant, that inevitably would lead to an unfair trial.
	I am dealing with the situation where there are two or three witnesses but where separate anonymity orders have been made. In a moment, I shall come to how that could easily happen without any evil intent on the part of the prosecution. Of course, there could also be prosecutions that did that deliberately. We are concerned with several witnesses testifying under anonymity but several orders in respect of those witnesses.
	Under Clause 5(2), one has to decide whether considerations (a) to (c) are met in an application for a witness anonymity order. The consideration in (2)(c) is,
	"whether evidence given by the witness"—
	for example, the witness in respect of whom anonymity is applied for—
	"might be the sole or decisive evidence implicating the defendant".
	If in the case of Davis there had been three separate orders, the evidence of any one witness against whom one was objecting would not be the sole or decisive evidence implicating the defendant. The same factors apply in Clause 4(4). One has to decide whether taking the measures contained in the order will be consistent with a fair trial. One has the same consideration with Amendment No. 12, where the question is whether, as a result of the order, the defendant did not receive a fair trial. I am saying, as all my amendments say, that one has to look at the effect of the orders cumulatively and not at the orders individually.
	To give an example of how it might arise that there was more than one order, let us assume that at the commencement of the prosecution there are only two relevant witnesses who can identify the defendant. One of those goes to the police and says, "I'm scared out of my mind about this. Can you do something for me?". The police say, "Yes, we'll apply for a witness anonymity order". The other person has never heard of witness anonymity orders or protection and does not raise the matter at that stage. A witness anonymity order is made in relation to witness A and, when witness B hears about that, he suddenly realises that protection could be given to him. He is equally and genuinely scared, so he asks for protection and another application is made.
	Another likely scenario is that, as one gets closer to trial, suddenly a third witness is found. No one may have known about him, or he may have been known but, as he had emigrated to South America, it was thought highly unlikely that he would reappear. However, he reappears and is asked, "Will you give evidence?". He says, "I will only give evidence if I'm protected". Again, an anonymity order is applied for and one is made. In this case, there are three orders, but my example is just as good with only two orders. Anyone objecting to those orders has to look at one order and object to it, when in fact what he is complaining about is the cumulative effect of the three orders.
	My amendment simply says that, in deciding these questions, one should look at the anonymity orders in the round and decide whether a trial would be unfair. I venture to hope that the noble Lord will find that amendment wholly unobjectionable and perhaps even think that it is rather useful that I have thought of it. I beg to move.

Lord Kingsland: I have had the benefit of listening to the noble Viscount, Lord Bledisloe, and I have nothing to add, save to say that I entirely concur.

Lord Thomas of Gresford: Everything that the noble Viscount, Lord Bledisloe, has said is common sense. I expect to hear an assurance from the Minister, even if the amendment is not accepted.

Lord Bach: The Committee will be grateful to the noble Viscount for his amendments, which are concerned with what should happen in a case where more than one witness anonymity order is made or applied for. His amendments provide for the court to consider whether the measures in the orders taken together would be consistent with the defendants receiving a fair trial, for the Court of Appeal to do the same when looking back at the effect of a pre-commencement order and for the trial judge, when deciding whether to make more than one order in a case, to consider whether the evidence of all the witnesses covered by them would be sole or decisive. I say to him, with the greatest respect, that we believe that the Bill as it stands has sufficient safeguards to deal with the situation that he so articulately put to us a few minutes ago and that therefore his amendment is unnecessary.
	The Bill provides that on each application for a witness anonymity order the conditions in Clause 4 should be met and that, in deciding that, the court must take into account the considerations in Clause 5, together with any other factor that it considers relevant. If more than one application is made in a particular case, the court will have to take that fact into account when making its decision on the conditions in the application before it, particularly condition B—whether the measures would be consistent with the defendant receiving a fair trial—and condition C, which is that it is necessary in the interests of justice, as well as a relevant factor under Clause 5(1)(b). All those provisions represent safeguards against the judge taking a view merely because the orders were made at separate times during the course of the hearing. He has to look at the overall position on each occasion.
	A further safeguard is provided by the court's powers in Clause 6 to discharge, vary or further vary any witness anonymity order made on its own initiative or on a party's application. That means that the court could reassess and vary, if necessary, the original order if a second or further application were to be made. We believe that the Court of Appeal or trial court would take the same approach in reviewing pre-commencement anonymity orders, as it is required to decide whether the order could be made under the provisions of the Act. The biggest safeguard of all is that the net result of the court's deliberations must be compatible with the defendant's right to a fair trial, which is guaranteed by Article 6 of the convention.
	The judge has an overriding obligation to ensure that the defendant has a fair trial. If he does not have a fair trial, any conviction is unsafe, which is the test that the Court of Appeal sets itself in these cases. The judge would be obliged at all times to see whether the defendant was getting a fair trial. One of the factors of which he would take notice is the number of anonymity orders that had been allowed in a particular trial. If he has already made one decision, he can always vary it using his statutory powers under Clause 6.
	I mean it when I say that I am grateful to the noble Viscount, who is trying to help the Committee, but we are not sure that the proposed words would make the task of the trial judge any easier. We think that they are unnecessary and I hope that the noble Viscount will consider withdrawing his amendment.

Viscount Bledisloe: In conclusion, the Minister said, "we are not sure" that these amendments are necessary. He pointed to rather ingenious ways—

Lord Bach: I apologise for interrupting when the noble Viscount has only just started his reply, but when I said, "we are not sure", it was meant to be a courteous way of saying that we do not think that his amendments would be of assistance. That is what I meant. I do not want him to be under any misapprehension about what I said.

Viscount Bledisloe: Now that the Minister has been reasonably discourteous and made himself plain, it is a great deal better. In dealing with me, he should never think that courtesy is necessary, but clarity is.

Baroness Mallalieu: I am increasingly troubled about what we are doing in this Committee stage and I wonder whether the Minister will reassure me. A number of careful amendments have been tabled from all sides of the House and there are more to come. Every one of them has been turned down. I understand that there is to be no opportunity at the conclusion of this Committee stage for any further amendments to be put down or considered by this House. If it is the view of the Government that every amendment that is put down and debated this afternoon is to be rejected, what is the purpose of today's Committee stage, other than cosmetic? I would be grateful if the Minister could help me.

Lord Bach: We will want to look very carefully at the amendments that have been moved here before we come to the Bill in the new Session to see whether the arguments that I am putting forward today as forcefully and courteously as I can have merit. No view was taken about the amendments before they were looked at carefully. Everything that has been said today will be relevant to the Bill that will come in in the next Session. If at the moment we thought that, for example, the noble Viscount's amendments made the Bill better, we would agree to them.

Viscount Bledisloe: I am grateful to the noble Baroness and to the Minister, but although the Minister suggested—I do not find it very convincing—that these amendments are not necessary, he has not suggested that they do any harm. They provide total clarity, as opposed to people having to fish around in various other sections to try to find ways in which the court might be able to get round my difficulty. In answer to the point made by the noble Baroness, I do not think that any reason has been advanced, so far, for rejecting these amendments. Unless the Minister can do better, I shall have to consider taking the opinion of the Committee.
	On Question, amendment negatived.

[Amendments Nos. 6 to 7C not moved.]
	Clause 4 agreed to.
	Clause 5 [Relevant considerations]:
	[Amendment No. 7D not moved.]

Lord Kingsland: moved Amendment No. 7E:
	Clause 5, page 3, line 20, at end insert—
	"( ) the principle that witness anonymity orders are justified only in exceptional cases;( ) the gravity of the offence;"

Lord Kingsland: I shall speak also to Amendment No. 8A which, on reflection, really belongs in an earlier group because it deals with the list of considerations set out in Clause 5.
	I feel somewhat in the same position as the noble Viscount, Lord Bledisloe, when moving his previous amendment. In my view, it is desirable for the judge, when making his decision about whether to award witness anonymity, to take into account, particularly where the issue is evidence as to credibility, whether there is any corroboration for the witness's evidence. That is the purpose of Amendment No. 8A, but I readily accept that it bears little relationship to Amendment No. 7E. I would be grateful if, when the Minister replies, he would deal with Amendment No. 8A in the context of its proper place, which is Clause 5.
	I will not disguise the fact that Amendment No. 7E is derived from New Zealand legislation. Of course I accept that New Zealand is not a country which, in its numbers or type of litigation, necessarily has great relevance to the situation that we face in this country; I shall not be surprised if the noble Lord makes that point in reply. However, he will be aware that among those highly principled organisations that have made submissions on the Bill, the Bar Council, for one, has urged the Government to include a provision that anonymity orders should be made only in exceptional cases.
	An easy way to deal with this is to say that half the cases where anonymity is granted are about drugs and, in particular, about undercover agents acting as buyers or sellers and then giving evidence against the relevant party; and that, if "exceptional" in the amendment were to appear in the Bill, it might be misunderstood in the context of those applications. I readily admit that, in that sense, the amendment would require some tweaking.
	On the other hand, the Bar Council, and many other organisations with intimate day-to-day experience of these matters, will tell the Minister that, on too many occasions now, especially in certain areas of the country, requests for witness anonymity are made by the police as a matter of course. Moreover, many are accepted by the court without the application of any objective tests—one of the reasons for that being that the judge is not put in possession of sufficient evidence to make an objective judgment.
	It is in that context that the first paragraph of Amendment No. 7E is advanced. It would be quite wrong for any court to take the view that, in criminal cases, awards of witness anonymity orders should be made regularly. I see that the Minister is nodding and, when he replies, I hope that he will not only repeat that evident assurance in words but, if he is not prepared to put something of this nature in the Bill, at least give encouragement to the Criminal Procedure Rule Committee to make it clear in its stipulations, when crafting the rules of court, that applications for orders ought to be granted only in exceptional circumstances.
	I know that the noble Lord, Lord Lester of Herne Hill, took me to task on Second Reading for suggesting that it should be only in grave offences that witness anonymity orders were made. I readily accept that there may be some circumstances in magistrates' courts when it is necessary to make anonymity orders. However, I hope that the Minister will agree that, generally speaking, it will be only in cases where indictments contain offences of the most serious nature that the orders are contemplated. I beg to move.

Lord Richard: I listened to the noble Lord, Lord Kingsland, with the greatest attention, as I always do when he is on his feet, and I agreed with 99 per cent of what he said. Somehow, it is necessary for us to establish—in legislation, by a strong statement from the Government or in the rules—that the orders should be used only in exceptional circumstances and in grave offences. I know the argument about gravity and the magistrates' court; I accept all that, but that is really a matter for drafting. The issue of principle here is the circumstances in which these exceptional orders—they are exceptional—should be applied for and granted by judges. I hope that my noble friend will be able, in one form or another, to make a clear declaration to that effect.

Lord Thomas of Gresford: I am in total agreement with everything that the noble Lords, Lord Richard and Lord Kingsland, said.

Lord Hunt of Kings Heath: I am grateful to the noble Lord, Lord Kingsland, for tabling the amendments. Clearly, this is a very important matter to which the Joint Committee invited your Lordships' House to give attention.
	Let me say at once that I very much understand the concerns expressed by noble Lords and the fear that anonymity has been granted as a matter of course and that the power has been overused. My noble and learned friend the Attorney-General has already made clear that one of the advantages of having to deal with the consequences of the Judicial Committee's judgment and having to consider emergency legislation, guidance and rules is that it enables us to ensure, as far as possible, that anonymity orders are used in the proper way.
	I say to my noble friend Lady Mallalieu that, although she is disappointed by the response of the Government to the amendments, this debate is extremely valuable in feeding into our understanding, in the drafting of the substantive Bill and in the various elements of guidance that will need to be given to those who will have to operate the system. I hope that she will take that assurance that we are listening very carefully to what is being said in your Lordships' House on these important matters. Our discussion on Clause 5 very much relates to Clause 4 and the conditions in paragraphs (a) to (c) that have to be met, but we believe that that ought to give a great deal of assurance to noble Lords on these matters.
	Amendment No. 7E, in the name of the noble Lord, Lord Kingsland, would require the court to make an order only in exceptional cases. The conditions in Clause 4 already make it clear that the court must be satisfied that the order is necessary, consistent with a fair trial and in the interests of justice. In addition, Clause 5(2)(a) already requires the court to have regard to the general right of a defendant to know the witness's identity. As I have suggested, that should ensure that courts should not turn lightly to anonymous evidence, but should make an order only where it is necessary for justice to be done.
	Our worry is that a requirement that anonymous evidence be used in exceptional cases, in addition to the existing safeguards, could set the bar so high that it might excessively restrict the availability of the orders. The noble Lord, Lord Kingsland, himself has suggested that this would undermine the ability of the police to use undercover officers to conduct test purchases of drugs. I suggest that the admission of anonymous evidence is not exceptional in this narrow category of cases.
	Amendment No. 7E would also require the court to have regard to the gravity of the offence. Surely the noble Lord, Lord Kingsland, agrees that the important question is whether the witness's anonymity is crucial to ensuring that justice is done in each case. Again, I use the example of test purchases of drugs by undercover police officers. These cases are not in the category of the most serious and violent of offences, but I am not convinced that the Committee would want to undermine police efforts in this area.
	The noble Lord referred to New Zealand legislation, and suggested that I might say that, although the New Zealand legislation has been a very helpful framework for us to look at in drafting our own Bill, circumstances in New Zealand are different. That is absolutely right. One difference is that, in New Zealand, legislation deals separately with test purchase cases. Sections 108 and 109 of the New Zealand Evidence Act 2006, with which I am sure all noble Lords are familiar, provides for a special procedure where an undercover police officer is a witness. In that circumstance, it does not refer to gravity or exceptional circumstances.
	Clearly, our Bill is constructed differently. It covers test purchase cases as well as those with civilian witnesses. Given the way in which it is constructed, it would be inappropriate to include exceptional circumstances and the gravity of the offence as considerations. Before the Judicial Committee's judgment, the common law power applied to all offences equally. We will consider this matter further in the coming months, but I hope noble Lords will accept that we would have real problems with the way in which the noble Lord has posed his amendments today.
	On Amendment No. 8A, I hope that I can give the noble Lord, Lord Kingsland, the assurance that he requires. A very important amendment to the Bill was made in the other place to include a requirement for the court to consider whether the evidence to be given by an anonymous witness might be the sole or decisive evidence in the case. This test invites the court to consider what other evidence is available to the prosecution. As I said, it was a most important amendment.

Baroness Kennedy of The Shaws: I am sorry to interrupt the Minister, but I asked whether the Government, in failing to accept that anonymity should be granted only in exceptional cases, are not keeping to the agreement and are reneging on something that has already happened with witnesses, given that permission has been granted to provide anonymity in so many low-level cases that are currently in the pipeline. That is not a good reason for not including "exceptional" in the Bill.

Lord Hunt of Kings Heath: No, that would not be a good reason, and I hope I can reassure the noble Baroness that that is not the case.

Lord Kingsland: I am most grateful to the Minister for his response, and to other noble Lords who have participated in this debate. I was particularly happy to receive the support of the noble Lord, Lord Richard. I remember him telling me that, the day after he came back to London after his very distinguished four-year service as a European Commissioner in Brussels, he was met at the door of his chambers by his clerk, who said, "Ah, Mr Richard, I've got a very interesting murder for you in Merthyr Tydfil". Did the noble Lord whisper "Pontypool" across the Chamber?
	If he can have reposed in him the confidence of his clerk after four years well away from the criminal Bar, I regard that as extremely powerful evidence for the Committee to take seriously what he said about my speech today.
	I cannot recall whether the Minister responded to my amendment on corroboration, which I tabled to Clause 5.

Lord Hunt of Kings Heath: My point was that the amendment to Clause 5(2)(c) in another place should give the noble Lord the comfort that he requires.

Lord Kingsland: I entirely accept that that was a very important amendment in another House; and, in the context of the jurisprudence of the European Court of Human Rights, a very wise one for the Government to have made. Nevertheless, that does not entirely answer the point that lay behind my amendment, because although "sole" is perfectly easy to interpret, when it comes to determining in marginal cases whether evidence given anonymously is decisive, it may from time to time be necessary to take other evidence into account and to assess its weight as corroborative. It would be too ambitious of me to hope that the Government would add this to the Bill, given their response to all the other amendments that we have tabled. Nevertheless, I hope that they will think very hard about it between now and when we consider all these matters again in our consideration of the Law Reform, Victims and Witnesses Bill.
	On Amendment No. 7E, I suggest to the Minister that one way of dealing with the point that was made particularly well by the noble Baroness, Lady Kennedy, would be to treat Clause 4(3)(a) and (b) more distinctly than they are treated in the Bill. Plainly, the drug cases to which the Minister referred are covered by the public interest part of the Bill. I quite accept that "exceptional" would be inappropriate in Clause 4(3)(b); it should apply only to Clause 4(3)(a).
	In the interim, I do not know to what extent the Government are permitted, or regard it as appropriate, to talk to the Criminal Procedure Rule Committee; but if they have an opportunity to do so, they might suggest to the committee that, in casting any rules that it cares to draft, it might reflect on how the notion of exceptional can be included in rules of court, or indeed in some other way such as in guidance to judges. If not, I am quite sure that, if one looks back at the history of particular judges' decisions on anonymity, one will seek clear trends in particular courts. For that reason, it should be emphasised that these decisions should be taken only exceptionally.

Lord Hunt of Kings Heath: I thank the noble Lord, Lord Kingsland, for those very constructive suggestions. Certainly, we will look at the architecture of the Bill and the relationship between the two parts of condition A when drafting future legislation. So far as guidance, advice and the role of the committee which will craft rules in the area is concerned, I have to be very careful about what I say and any approach that the Government might make. There are also questions about the remit of the committee, which is concerned with rules and procedure. In addition, there are other avenues in which advice may be given. I cannot give absolute assurances, but this will be taken away and we certainly will seek to give appropriate advice.

Lord Kingsland: I am most grateful to the Minister for being so constructive. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 8 to 8B not moved.]
	Clause 5 agreed to.

Lord Thomas of Gresford: moved Amendment No. 9:
	After Clause 5, insert the following new Clause—
	"Independent counsel
	(1) For the purposes of considering an application for a witness anonymity order, the court may appoint an independent counsel to assist the court.
	(2) The court may direct the independent counsel to scrutinise on the court's behalf any relevant matter the court thinks fit, and to carry out any instruction the court thinks fit.
	(3) The party applying for the witness anonymity order must disclose to the independent counsel all information relating to the proceedings that is in that party's possession.
	(4) The independent counsel shall have power to require police officers unconnected with the relevant trial to investigate and to report to him whether there are any matters relevant to the considerations set out in section 5(2)(d) and (e) which should be drawn to the attention of the court.
	(5) The independent counsel shall be entitled to examine witnesses and to assist the court in its consideration of Conditions A to C in section 4."

Lord Thomas of Gresford: Everything that can be said already has been said on this. Perhaps I may add that the New Zealand legislature would understand the meaning of the term "kick and rush", not least because our parliamentary team defeated the New Zealand parliamentary team on two occasions. I am proud to say that I refereed one of those games. It might also be known in Merthyr Tydfil and Pontypool. However, we are not happy to succumb to kick-and-rush legislation and we do not propose to set aside our right to move amendments as and when we think fit and to divide the House. I beg to move.

On Question, Whether the said amendment (No. 9) shall be agreed to?
	Their Lordships divided: Contents, 71; Not-Contents, 150.

Resolved in the negative, and amendment disagreed to accordingly.
	Clauses 6 to 8 agreed to.

Lord Thomas of Gresford: moved Amendment No. 10:
	After Clause 8, insert the following new Clause—
	"Code of practice
	(1) The Lord Chancellor must adopt and publish, within 84 days of the passing of this Act, a code of practice which shall set out—
	(a) the steps which must be taken by a party making an application under section 3 to investigate any matter which might reasonably affect the credibility of the witness or demonstrate partiality or motivation upon the part of the witness not to tell the truth;(b) the nature of any information to be given to such a witness regarding the circumstances in which an application might be made for an order under section 3 of this Act; and(c) the nature and contents of records which must be kept relating to such an investigation.
	(2) When deciding whether or not to grant an order under this Act, and in deciding upon what measures to include in such an order, the court must take into account the degree to which the party applying for the order has complied with his or her responsibilities under the code of practice and any effect which non-compliance may have upon the ability of the court, the jury or the parties to have adequate information upon which to assess the witness."

Lord Thomas of Gresford: This amendment raises the issue of a code of practice, which should be published within 84 days, setting out what steps a party making an application has to take,
	"to investigate any matter which might reasonably affect the credibility of the witness or demonstrate partiality or motivation upon the part of the witness not to tell the truth ... the nature of any information to be given; and ... the nature and contents of records which must be kept relating to such an investigation".
	It is proposed that when the judge comes to decide whether an order should be made, he takes into account whether the party applying for the order has complied with those responsibilities.
	We are returning to the issues that were graphically outlined by the noble Lord, Lord Elystan-Morgan, about a judge having material on which to exercise his judgment and discretion. The closer we can get to that, so that the judge can make an informed decision, the better. I do not intend to extend my submissions on this amendment. I beg to move.

Baroness Scotland of Asthal: I commend the noble Lord on his elegantly short exposition in support of his amendment. Perhaps I may say straightaway that we agree absolutely that when considering an application for witness anonymity, the court must have before it all the relevant information and that those making the application must do so diligently after making all the necessary inquiries. We agree with the noble Lord, Lord Elystan-Morgan, on this and we agree with the comments made in support of it by the noble Lord, Lord Thomas. But I should point out that much of this territory is already covered by a code of practice made under Section 23 of the Criminal Procedure and Investigations Act 1996 which requires police officers to pursue all reasonable lines of inquiry and sets out in detail the manner in which police officers must retain, record and reveal to the prosecutor any relevant material obtained in a criminal investigation.
	We recognise the need for guidance for practitioners and the enforcement authorities, but we are not currently convinced that a statutory code of practice is the right vehicle for it. If the Bill receives Royal Assent, both the Director of Public Prosecutions and I will issue guidance to prosecutors that will make it clear that in this area more than any other it is critical that prosecutors act independently of the police and the witness. In addition, I understand that the National Policing Improvement Agency and the Association of Chief Police Officers are working on guidance for the police that will address the use of anonymity at the pre-charge stage of an investigation.
	The amendment does not specifically address the question of defence applications. It is assumed that the code of practice would be intended primarily for prosecutors. It is inevitably the prosecutor who must conduct inquiries into witnesses and who therefore must always know the real identity of a defence witness, a matter that was raised in our earlier discussions. In the light of my assurance that appropriate guidance will be issued to the police and prosecutors, I hope that the noble Lord will agree to withdraw his amendment.
	Perhaps I may also say at this point that I have been very taken with the concerns expressed by my noble friend Lady Mallalieu, and I should like to assure her and the Committee that we will take all these matters into consideration when we come to look at this issue.

Lord Thomas of Gresford: I am grateful to the noble and learned Baroness the Attorney-General for her assurance that guidance will be issued, and no doubt that guidance will be made public so that practitioners are able to access it and make submissions in relation to it. I look to her for an assurance of that kind.

Baroness Scotland of Asthal: The noble Lord will know that there are two forms of guidance. One is the guidance of the Attorney-General and the other comes from the Director of Public Prosecutions, which goes directly to prosecutors to assist them in relation to making their decision. Both sets of guidance will be available in the usual way.

Lord Thomas of Gresford: I am much obliged to the noble and learned Baroness. I am pleased to hear her say that in this area above all others a prosecutor must be certain to act independently of the police, and in that eventuality I am sure she will agree with me that there should be no question of the police offering anonymity to witnesses and thereby binding subsequent procedures that may take place either in charging or in the prosecution of a case in court and in applications made to the judge. That, I think, is the import of what she has said, and unless she indicates otherwise, I am happy with it. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 9 agreed to.

Lord Campbell-Savours: moved Amendment No. 11:
	After Clause 9, insert the following new Clause—
	"Anonymity in rape cases
	A person, or persons, who has been granted anonymity in a court of law for the purposes of giving evidence in a trial of a person charged with an offence of rape may lose that anonymity where the following circumstances apply—
	(a) the Criminal Cases Review Commission has declared the conviction of a person as unsafe on the basis of false evidence having been provided by the person, or persons, granted anonymity;(b) a judge, following upon the reference to the Court of Appeal of a conviction by the Criminal Cases Review Commission, sets aside the conviction and in the public interest requires the removal of anonymity from the person, or persons, who has given false evidence."

Lord Campbell-Savours: This is a simple amendment which should be welcomed by the Government as it seeks to bring into law only that which the Government already appear to have in mind for inclusion in primary legislation. It develops the principle of discharge as set out in Clause 6 of the Bill. Furthermore, it is a transparency amendment, one in a series of such amendments that I have been introducing during the consideration of a number of Bills. These transparency amendments provide members of the public with the information they require to enable them to make more informed judgments in the conduct of their personal lives and in the decisions they take. The beneficiaries here would be men whose actions might be influenced by the availability of such information.
	The amendment stems directly from a number of highly-publicised cases, in particular that of Warren Blackwell, a man who spent three years in prison for a crime that he did not commit. Warren Blackwell, a Midlands businessman of impeccable reputation, had been convicted on the basis of a tissue of lies from a woman who had a history of false allegations and a conviction for robbery. Over a period of 17 years, under eight different aliases, she had made accusations of rape against her father in 1984, her stepfather, a local boy in 1983, and further rapes and sexual attacks in 1998, 1999, 2000 and 2001. On three separate occasions she alleged that she had been attacked from behind with a knife. Yet, having accused Blackwell of rape and with police files bulging with information on previous offences alleged by the accuser, Blackwell was prosecuted, convicted and incarcerated for three years. Unbelievably, the then Attorney-General successfully appealed against the shortness of the sentence and it was increased to five years.
	Following the efforts of a policeman and the diligence of Annie Johnston, a barrister, in 2004 the Criminal Cases Review Commission intervened and referred the whole case back to the Court of Appeal on the basis that the conviction was unsafe. The judge reversed the conviction. The problem was that the accuser, whose background had been exposed, could not be named because of the provisions in the Sexual Offences (Amendment) Act 1992. Under that Act, whereas under Section 3 the trial judge has a "get out" discretion, as I call it, to remove lifelong anonymity, in the Court Appeal the judge does not have that discretion.
	In the Blackwell case in the Court of Appeal, Lady Justice Hallett said:
	"The judgment we have delivered gives rise to the concern that there may in the future be another case in which this complainant makes similar allegations against another man. If that were to happen, it would be in the interests of justice that the alleged attacker should be able to find out about and use in his defence the information contained in the report of the [CCRC] and referred to in this judgment. Parliament does not appear to have contemplated the risk of a complainant acting as this complainant is alleged to have done. We are concerned that there appears to be no means by which we can displace a complainant's entitlement to anonymity in the interests of justice for any person against whom she may make allegations in the future".
	Before anyone argues that I am calling for an end to anonymity for all women, I wish to make it clear that this is not the case. I am not arguing that anonymity of the accuser should automatically be lifted where a defendant is not found guilty. A rape may well have taken place and the prosecution may have been unsuccessful because of jury prejudice, an insufficiency of evidence or even jury concerns over the scale of penalty which might be imposed for what some jurors might feel is an act on the margins of consent and compulsion. In other words, we cannot condemn the great majority of women who allege rape but cannot convince a jury in a court of law. My amendment does not penalise them.
	However, a small minority are telling lies and their lies and false allegations are often uncovered only when their history of false allegations is exposed. Men have a right to be protected from false allegations and a right to know that the development of a relationship with a serial false accuser, who may make an accusation of rape, can ruin their lives. I am aware of a number of cases where false allegations have destroyed men's reputations and even led on some occasions to suicide. My amendment will affect very few cases. According to an answer given on 23 February 2007, only 32 rape cases have been referred to the Criminal Cases Review Commission since 1997, an average of three a year. My amendment seeks to deal only with cases referred by the CCRC to the Court of Appeal. Removal of anonymity would not be automatic as there are circumstances where mental health may be an issue for the judge in the Court of Appeal to decide upon.
	The question is whether this Bill is the right vehicle for such an amendment. Not absolutely, but it is very near to being a vehicle. I understand the distinction that my noble friend may wish to draw at the Dispatch Box today, but that is for the Government to consider and Parliament to decide upon. We know that the Government are sympathetic. I understand that my right honourable friend Mr Mike O'Brien, a Member of the other House, as Solicitor-General, in early 2007 told the Times newspaper that:
	"The Government has no plans to remove anonymity for complainants in the vast majority of cases"—
	with which I agree. However, his departmental brief went on to say that,
	"Ministers are looking at a very restricted power that might be used where it would be in the 'interests of justice' to lift anonymity in the case of complainants whose allegations were found to be unsubstantiated and the conviction squashed by the Court of Appeal".
	When he was Attorney-General, my noble and learned friend Lord Goldsmith told the House in reply to a question from myself:
	"I have said that we are considering this matter. I am prepared to say that we are actively considering this matter. Subject to other ministerial colleagues, I hope that we shall still reach a decision soon".—[Official Report, 9/1/07; col. 111.]
	Earlier he had said:
	"As we have made clear, the Government are considering whether the law on complainant anonymity requires amendment in the light of the Court of Appeal judgment in the Blackwell case".—[Official Report, 9/1/07; col. 109.]
	Later that month, my noble and learned friend Lady Scotland, who is in her place—I understand that she was a Home Office Minister at the time—stated:
	"The rules governing complainant anonymity are set out in statute—namely, the Sexual Offences (Amendment) Act 1992 as amended—and primary legislation would be required to amend them".
	This is primary legislation. She went on to say that,
	"we are considering actively whether any amendment of the law is appropriate to take account of the remarks of the Court of Appeal in the Blackwell case".—[Official Report, 16/1/07; col. WA 137.]
	I make that one Solicitor-General, one Attorney-General who was at the time a Home Office Minister and one former Attorney-General. I support them in their endeavours. This is an opportunity and I hope that they support my amendment today. I beg to move.

Lord Hunt of Kings Heath: I congratulate my noble friend on his ingenuity in bringing this matter to the Committee's attention. In addition to the wise words he has quoted from esteemed and former colleagues, we have had the enjoyment of two Oral Questions on this matter in the past few months, when I, as a humble justice Minister, also added my name to the review to which my noble friend has referred. When the substantive Bill is brought before your Lordships' House in the next Session, my noble friend will undoubtedly wish to take part in those discussions.
	One has to draw a distinction between the legislation to which my noble friend refers and the legislation we are discussing today, although I have no complaint whatever about him bringing this amendment before us. He is dealing with a situation where a witness in a rape case who is subject to a witness anonymity order granted under the Bill gives false evidence and the defendant is then convicted. Where the Criminal Cases Review Commission subsequently refers the case to the Court of Appeal and the court quashes the conviction on the grounds that the witness's evidence is false, the amendment would enable the anonymity to be lifted.
	I am well aware of the case that my noble friend raises, and I will come back to it in a minute. His amendment would have a similar effect, in relation to the witness anonymity scheme in the Bill, to the possible amendments we are considering to the complainant anonymity scheme in the sexual offences cases. However, this Bill has to do with witness anonymity from the defendant, not complainant anonymity in the form of reporting restrictions, which is a case in relation to the Sexual Offences (Amendment) Act that he has referred to. The present Bill deals with witness anonymity in the sense of withholding a witness's identity from the defendant.
	I am aware of, and have debated with my noble friend, the issue of complainant anonymity in sexual offences cases. It is governed by Section 1 of the Sexual Offences (Amendment) Act 1992, which does not permit the witness's identity to be kept from the defendant. Essentially it is a form of reporting restriction, with the aim of preventing the reporting of the witness's identity to the wider public. If, as my noble friend suggests, a witness granted anonymity from the defendant perjures himself or herself at the trial and is subsequently prosecuted for perjury arising out of that testimony, what is the situation vis-à-vis the witness anonymity order? That is where Clause 6, to which my noble friend has already referred, comes in; it enables a witness anonymity order under the Bill to be discharged by the court that made the order, either on the application of any party to the proceedings or by the court on its own initiative.
	That power of variation and discharge continues indefinitely, including after the trial has ended. In the situation envisaged by the amendment where a conviction was quashed by the Court of Appeal, Clause 6 would not grant the Court of Appeal a specific power to discharge the order, but it could be discharged on application to the Crown Court. In that sense, my noble friend's amendment is unnecessary. Under the Bill, the court that makes a witness anonymity order already has a discretion to vary or discharge it, provided that there has been a change of circumstances since the order was granted. A charge of perjury would constitute such a change of circumstances.
	Should proceedings for perjury in the situation envisaged by my noble friend inevitably mean that the court would want to discharge any witness anonymity order that may have been made, there is a strong argument that it should. An anonymous witness subsequently charged with perjury becomes a defendant, and there is a universal presumption against defendant anonymity.
	I know that my noble friend is anxious that we report on the review. I understand that. All I can say at the moment is that we are still actively considering the issue. I cannot tell him when the review will be concluded although, in the light of what he has said today, I will redouble efforts to get him some more information about that. He holds the threat over me that if we do not make progress he will bring this back when the Bill comes through in the next Session.
	We are attempting to strike the right balance between protecting the public from false allegations and ensuring that legitimate complainants are not discouraged from coming forward. We want to ensure that genuine complainants would not be put off by the fear, perhaps unfounded, that their identity would become known, but we are considering the issue in relation to the case that my noble friend has raised. We have no plans to lift anonymity for complainants in sexual offence cases; indeed, I readily accept that my noble friend did not argue that point at all, and he presented his case in a very measured way. I hope he will accept from me that while I do not think his amendment is necessary in this Bill, the matter he has raised is being taken seriously by the Government.

Lord Campbell-Savours: I am indebted to my noble friend. I do not want to detain the Committee, and on that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 10 agreed to.
	Clause 11 [Pre-commencement anonymity orders: appeals]:
	[Amendment No. 12 not moved.]

Viscount Bledisloe: moved Amendment No. 13:
	Clause 11, page 6, line 10, leave out "the defendant did not receive a fair trial" and insert "there is a real probability that the defendant may not have received a fair trial"

Viscount Bledisloe: This amendment relates solely to appeals against convictions that have already taken place under the past system and where witnesses were given anonymity. Clause 11(2)(b) provides that the conviction is to be treated as unsafe if the court considers that the defendant did not receive a fair trial. The whole difficulty about anonymity is that the defendant will not know whether he received a fair trial because he does not know whether, if he had known the witness's identity, there were a whole lot of things he could have put to the witness that would have proved them likely to be a liar, malicious and so on. The defendant will never be able to demonstrate that he did not receive a fair trial, but he may well be able to raise a sufficient case to indicate that there is a real probability that he may not have received a fair trial. That is the amendment that I propose.
	This is not a matter where it is pointful for the Minister to say, "We'll deal with this when the whole thing comes back in 12 months' time", because these appeals, by definition, are going to be heard in the immediate future because they are appeals against cases that have already happened. It will be little consolation to the appellants in those cases to find that in 12 months' time, after their appeals have been dismissed, the Government recognise the validity of the point I am making and put forward a lesser test, but a test that will not be applied to almost all the cases covered by this provision. I beg to move.

Lord Bach: I am afraid that we reject this amendment. We think it would change the basis on which the Court of Appeal, day by day, looks at appeals against criminal convictions, and that there is no justification for doing so here. The test for the Court of Appeal, as I think was said earlier, is whether a conviction is unsafe. Obviously, if a trial has been unfair, it follows that the conviction will be unsafe.
	Here the law will allow that if, under the statutory powers that the Bill will give, the defendant who was convicted under the common law has received a fair trial where a witness has been allowed to give anonymous evidence, that conviction should be upheld. If, however, the defendant did not come within the statutory test that is clearly set out in the Bill, his trial will have been unfair because an anonymous witness should not have been allowed to give evidence. We think that it is as simple as that. To put in here the possibility of a real probability that a defendant may not have received a fair trial seems to us to go too far.
	We do not see an argument in favour of requiring the Court of Appeal to consider whether the appellant may not have received a fair trial. The issue is: did he receive a fair trial as provided for by the Bill that we hope will be passed tonight?
	We believe that the appeal court will be in a position to assess whether in its opinion the decision taken by the trial court in making the pre-commencement anonymity order was in all the circumstances fair and afforded that defendant a fair trial. If it concludes that the defendant did not receive a fair trial, then, again, the conviction is unsafe and has to be quashed.
	It is for those quite simple reasons, which cover matters of broad principle, that we object to the amendment and ask the noble Viscount to withdraw it.

Viscount Bledisloe: I confess that I find that answer unsatisfactory. The defendant cannot know whether he had a fair trial; he cannot know whether, if he had known the name of the witnesses, he would have had any further questions to put. If he had known the witness's identity, he might have called all sorts of evidence and cross-examined heavily. Alternatively, if he had known the witness's identity, he might have had nothing further to say. How can the defendant demonstrate, therefore, that he did not receive a fair trial? All he can say is, "It does not seem to me that I had a fair trial because I did not have a chance to put the points that I might have put if I had known who was giving evidence". I am deeply unsatisfied with the Minister's answer. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 11 agreed to.
	Clause 12 [Interpretation]:

Lord Thomas of Gresford: moved Amendment No. 14:
	Clause 12, page 6, line 24, leave out "a magistrates' court,"

Lord Thomas of Gresford: The Bill extends to magistrates' courts. In New Zealand, if the question of anonymity arises in a district court, the case is automatically transferred to the high court for trial. The Government have chosen not to follow the New Zealand pattern in this respect. It is a test of the exceptionality of the provisions that they are putting forward. How many times has anonymity been granted to a witness in the magistrates' courts so far as the Minister's records can tell us? Secondly, how many magistrates' courts are currently equipped to enable special measures to be carried out to ensure the continuing anonymity of a witness?
	In principle, this provision is unacceptable for a number of reasons. In the first place, the application has to be made to the magistrates who actually hear the case. At the beginning of the trial, the magistrate is confronted with an application for anonymity which must be on the basis of threats, fear or misconduct on the part of the defendant or his associates. That inevitably means that the magistrates will be heavily prejudiced against the defendant before the matter is heard at all.
	Secondly, there is no provision in the magistrates' court—no inherent jurisdiction—to appoint the sort of special counsel that the Government concede the High Court and the Crown Court can grant. Their answer to our request for independent counsel to be included in the Bill is, "You already have it". There is an inherent power in the Crown Court or in the High Court for special counsel to be appointed. That does not of course apply to the magistrates' court. So that safeguard, which the Government say is sufficient for this emergency legislation, is not available either.
	One then has to consider the gravity of the offences that are to be subject to such an order. The noble and learned Baroness, who is not in her place just at the moment, mentioned the possibility of breaches of control orders being before the magistrate. Surely dealing with anonymous witnesses is sufficiently important for the case to be transferred to the Crown Court for consideration of that point. There should be machinery in place to do that.
	Another argument advanced by the Government is that youth courts try more serious offences than the average run of the magistrates' court. That may be so, but all the problems that I have outlined in relation to adult magistrates' courts apply to youth courts. There should be built-in machinery to enable a Crown Court judge to consider a matter as serious as that if it is to be used exceptionally and not to become an everyday order made by the court.
	It might be said that witness intimidation cases are heard in the magistrates' court. There are few cases of any nature heard in the magistrates' court which are as serious as witness intimidation. Surely if the question of anonymity arises in that respect, the matter should be put up to the Crown Court straight away. Even if there is no power to do so, that is bound to be a more serious offence than the sort of offences that commonly appear before the magistrates for their adjudication.
	From the point of view of practicality, principle and the lack of the proper machinery, the inclusion of magistrates' courts in the Bill is a step too far. It is a matter which deserves much more consideration in connection with the future Bill than it has received so far. I beg to move.

Lord Lloyd of Berwick: I support the amendment. First, I must express my apologies for not having been able to be here on Second Reading. I know the rules very well about not making Second Reading speeches in Committee, and I have no intention of doing so. However, I would like to say something—about five sentences in all—seeing that the noble and learned Baroness referred to a letter which I wrote to the noble Lord, Lord Hunt.
	I was much concerned by the initial reactions to the decision of this House in R v Davis. I was concerned that Parliament might be asked to reverse that decision on its facts. When I read the Bill, however, and in particular the late amendment introduced by the Government in the House of Commons, which is now Clause 5(2)(c), I realised that that is not so. If the facts of Davis were to recur again tomorrow, the result would, in my opinion, be exactly the same. I am very glad of that.
	My real concern now is whether the Bill should be extended to magistrates' courts. In my view it would be a mistake, at least until we have some experience of how the Bill will work out in the Crown Courts. The Director of Public Prosecutions—this is to some extent an answer to the question of the noble Lord, Lord Thomas—could think of not a single case in which an anonymity order had been sought in the magistrates' courts. The Lord Chancellor could think of two such cases, but they were of a very different order from the 50 so-called civilian cases and the 17 so-called Trident cases, which are the reason—the only reason—why the Bill is before us as emergency legislation.
	There are two other reasons for caution in respect of magistrates' courts. First, there is considerable doubt about the practicability of extending the Bill to magistrates' courts, a doubt which has been expressed in many quarters. Secondly, although there was some discussion of magistrates' courts in the other place, the other place never reached Clause 12.
	This has been described by the noble and learned Baroness as an interim measure. Surely it is better not to embark on difficult and, to some extent, unexplored territory in an interim measure unless it is absolutely necessary, which in my opinion it is not. We do not want to add to the teething difficulties that the Bill will undoubtedly experience in the Crown Courts let alone the magistrates' courts.
	I read with great interest what the noble and learned Baroness said in her reply at Second Reading, but, with respect, I have to say that I found that part of her reply the least satisfying. The sensible course now must be to see how the new procedure works out in the Crown Court and then apply it, if thought fit, when the new Bill comes along in the next Session. There cannot be that much of a hurry to apply the Bill to magistrates' courts. If there are urgent and important cases that might otherwise have gone to the magistrates' courts, they can always in the mean time, as the noble Lord, Lord Thomas, has explained, go to the Crown Court—there is no difficulty about that at all. I therefore hope that the Government will agree to the amendment, or at least that the noble and learned Baroness or the noble Lord, Lord Hunt, might find some way of bringing into force this part of the Bill, so far as it relates to magistrates' courts, only at a later stage when the new Bill is introduced. If anybody needs any assistance in drafting an amendment to Clause 13 to enable that to be brought about, I shall be happy to help before Third Reading.

Lord Mayhew of Twysden: The arguments that have just been adduced seem overwhelming. I do not wish to delay for more than a minute the reply from the noble Lord or from the noble and learned Baroness, when we will see whether they are overwhelmed. I hope that one question will be answered when they reply. We have been reminded that the New Zealand model does not provide for similar provisions to apply to the magistrates' court. What adverse consequence, if any, is seen by the Government to have derived from that feature of the New Zealand model that has led them to decide not to follow it in the Bill?

Baroness Butler-Sloss: I support the Bill, but it is inappropriate that it should extend to the magistrates' court. That is my only criticism of it. Whether or not that provision is to be exceptional, as has been suggested, or it should apply only in certain circumstances, I have real concerns about it. I therefore respectfully support both noble Lords who have just spoken.

Lord Clinton-Davis: I share the opinion that has been expressed. Having had quite a lot of experience of magistrates' courts, I think that it is entirely inappropriate to include them in the Bill. Therefore, I shall weigh in with support for the noble Lord.

Lord Hunt of Kings Heath: I am most grateful to noble Lords for their contribution to this, our final debate in Committee. It has been interesting because we spent a great deal of time during the passage of the Criminal Justice and Immigration Bill discussing the worthiness of the magistrates' courts. It has been interesting to listen to noble Lords' comments on specific issues relating to witness anonymity and the role of the magistrates' courts.
	Before coming to the argument, I shall answer the specific questions that were raised. While I accept that the Government need to give careful consideration to the points raised—I will suggest a way in which they intend to do so during the next few months—I point out that the status quo is that magistrates' courts are and have been covered by witness anonymity procedures. Therefore, the Government are retaining the status quo, albeit with the safeguards that are being built into the legislation. In that sense, the Bill provides strengthened safeguards in relation to magistrates' courts, as it does to other courts.
	I am wary of citing figures. We have the results of a snapshot survey by the CPS. The number of cases of which we are aware is one case in the magistrates' courts and one case in the youth court. It is clear that that is a snapshot survey, but it suggests that—to use the terminology of the noble Lord, Lord Kingsland, when speaking to a previous amendment—this measure appears to be used in exceptional circumstances.
	The noble Lord, Lord Thomas, asked whether magistrates' courts have the facilities for the measures that need to be taken in relation to witness anonymity. My advice is that neither the magistrates' court nor the Crown Court automatically has specific technical equipment for witness anonymity cases, which are dealt with on an ad hoc basis. There is no reason in principle, therefore, why any Crown Court should have facilities that the magistrates' court does not. There is nothing to prevent proceedings from being transferred to a local Crown Court building if the layout and facilities are more appropriate there, but, of course, the case would still be heard by the magistrates. I am reliably informed that special considerations in any case need to be given in Crown Court facilities when witness anonymity is agreed to, as I am sure the noble Lord, Lord Thomas, with his vast experience, will know.
	On magistrates' courts having no power to appoint special counsel, I must again be cautious about the information that I have. We are not aware of an example of this happening in practice, but there is no reason in principle why the magistrates' court cannot draw on the assistance of special counsel in the same way as the Crown Court can. My understanding is that the court would write to the Attorney-General asking for an appointment to be made, as the Crown Court does, if the court felt that to be appropriate.
	The amendment would prevent witness anonymity orders from being made in magistrates' courts. Magistrates' courts include the youth court. Real concern would be felt about the impact of the amendment on youth courts. Although some serious offences committed by young offenders are dealt with by the Crown Court, it would not be appropriate as a matter of policy to require defendants under 18 to be tried in the Crown Court to obtain a witness anonymity order. I refer noble Lords back to our debates during the passage of the Criminal Justice and Immigration Bill on young people appearing in the Crown Court.
	We think that the current position should continue under this emergency Bill because there may be offences, including cases involving the test purchase of drugs by undercover police officers, that could be tried quite appropriately in the magistrates' court using anonymous evidence. Indeed, you could argue that the defendant might be disadvantaged if such cases had to be sent to the Crown Court—for example, if the case took longer to come to court.
	The noble and learned Lord, Lord Mayhew, asked whether I was aware of any difficulty with the operation of courts in New Zealand and the fact that there is no provision for the equivalent of magistrates' courts in that country to use witness anonymity. I am not aware of any such information. Clearly, we have had little time to consider these matters, but we have been very much helped by the framework of the New Zealand legislation. As the noble Lord, Lord Kingsland, said earlier, however close our ties are to New Zealand, the circumstances in our two countries can be different. But clearly we will have a little time now to do some more exploration of the experience in that country.

Lord Lloyd of Berwick: Surely that is the whole point. We need a little more time to consider how this would work in relation to magistrates' courts.

Lord Hunt of Kings Heath: I was just about to turn to the noble and learned Lord. Although he was not able to speak at Second Reading, his intervention here is none the less extremely welcome, even though he is arguing against the point that I am making. I hope that he did not mind our reading the short extract from his letter at Second Reading, but we could not find him to ask whether he would find that acceptable. I am glad that he does not seem to object.
	I acknowledge that the issues raised by noble Lords here today are very real and valid, although the Government believe that, none the less, there is a strong case to allow magistrates' courts to be able to make decisions in relation to witness anonymity orders. We all agree that this needs further consideration. I am certainly prepared to examine the issue in more detail over the coming months, to consult noble Lords and to reach a considered view on the appropriate way forward in time for the fourth Session Bill.
	There is no argument that this matter requires further consideration; the question is whether, in the light of that, we retain the Bill as it is or agree to the amendment moved by the noble Lord, Lord Thomas, and exclude magistrates' courts in the short interim period. My argument for suggesting that the Committee does not go down that path is that essentially we have sought, in the construction of this Bill, to take things as they are—the status quo—and to ensure, as the noble and learned Lord, Lord Lloyd, rightly suggested, that we have the safeguards necessary to ensure that this complies with ECHR considerations. On that basis I argue that, as this vision of witness anonymity has applied to magistrates' courts in the past, we would be sensible to allow that to continue in the interim. None the less, I accept that we then need to have a serious discussion on the future with noble Lords and other interested parties in time for the arrival of the substantive Bill before your Lordships' House.

Lord Thomas of Gresford: I am grateful to the Minister for his assurances, but one registered case in a magistrates' court and one in a youth court really tells it all. Whether those cases would have succeeded in the light of Davis is a matter for simple speculation.

Lord Hunt of Kings Heath: Surely I would be damned if I did and damned if I did not. If I had said that there were hundreds of cases, the noble Lord would say, "Shock, horror, we must stop it and take it out".

Lord Thomas of Gresford: I do not follow the logic of that, I regret to say. What is lacking is any evidence on which the Government's policy is based. There is no evidence of need and none of a request or requirement from the magistrates' courts for this sort of anonymity to be extended to them. The Minister says that he knows that it has been used twice. That may be simply an aberration; I suggest that it is. But the Government are now crying out for this policy in an emergency Bill as something that is so essential that we have to rush it through in a day in the House of Commons and in two days here, with all the stages being taken now.

Lord Hunt of Kings Heath: I am sorry to interrupt the noble Lord, but it is not the Government who have rushed suddenly to put a new provision into the Bill. We are talking about a position in which this currently has applied to magistrates' courts. It is the noble Lord who is rushing to make a precipitate decision on which we have not had time for careful consideration.

Lord Thomas of Gresford: Exactly—we and the Minister have not had time for careful consideration, yet he is clinging on to the extension of anonymity to magistrates' courts based on two cases. Two cases!

Lord Hunt of Kings Heath: The noble Lord keeps talking about an extension. This is not an extension; it is there already.

Lord Thomas of Gresford: I have outlined already why we are dissatisfied with these provisions. I look forward to further discussions in the coming year. It seems to me that we should all have a trip to New Zealand to find out what the situation is there.

A noble Lord: On a one-way ticket!

Lord Thomas of Gresford: That is very kind. I might take up that offer, provided that the noble Lord will pay for it.
	This is a serious matter. What I fear is that the magistrates' courts, having been informed that they have this power, will start to use it and that police officers in all sorts of stupid little cases—ASBOs and things of that sort—will start asking for anonymity for their witnesses. That is inappropriate when we are concerned with a principle of open justice—that a defendant should see his accuser. That has been underlined as essential to a fair trial by the Judicial Committee of this House. I do not propose to press this amendment to a vote but I shall participate in any further discussion on this topic in the near future. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 15 not moved.]
	Clause 12 agreed to.
	Clauses 13 to 15 agreed to.
	House resumed: Bill reported with amendments; Report received.
	Bill read a third time.

Lord Hunt of Kings Heath: My Lords, I beg to move that this Bill do now pass. In doing so, I express my grateful thanks to all noble Lords and noble and learned Lords who have taken part not only in our discussions today and at Second Reading but at the meetings held between the Front Benches of the two main parties and with other noble Lords and noble and learned Lords. These have been very constructive discussions. I am extremely grateful to all noble Lords for their co-operation in enabling this emergency legislation to be passed through your Lordships' House. I reiterate that we take very careful note of all the points that have been raised in our debate and look forward to a constructive engagement with noble Lords over the next few months.
	I wish that the Ministry of Justice's budget was sufficient to take us all to New Zealand but, alas, I doubt it. Certainly we will look carefully at what experience we can garner from other countries in order to enhance our debate when the substantive Bill comes to us in the next Session.
	I conclude by apologising again for the problem identified earlier today of the late notice of government amendments. I very much regret that and hope that, none the less, the House will understand that this has been done under great pressure. The opportunity to consider the Bill in substantive form in the next Session at least provides some reassurance.
	Moved, That the Bill do now pass.—(Lord Hunt of Kings Heath.)
	On Question, Bill passed, and returned to the Commons with amendments.

Business

Baroness Royall of Blaisdon: My Lords, we are about to move on to the Planning Bill. I know that the timing has generated much frustration and anger. Noble Lords might well regard it as bad planning. I can assure noble Lords that the timing is not out of disrespect, either to noble Lords or to the Bill. Any anger expressed inside or outside the Chamber should be directed at me and not at my noble friend, who fights tenaciously for the Bill and proper timing.
	The reality is that by retaining the Second Reading today I have angered some noble Lords; if I had moved it I would have annoyed other noble Lords. Thirty-seven noble Lords are down to speak. If an advisory time of seven minutes is followed, the Second Reading will take five to six hours. Because of the extraordinary timing, while recognising that it is proper and usual practice for those who have spoken in a debate to be there for the winding-up speeches, I am sure that on this occasion it would be understood if a noble Lord had to leave.

Planning Bill

Baroness Andrews: My Lords, I beg to move that this Bill be now read a second time.
	I thank all noble Lords who will speak in the debate today. I am very grateful that, despite the late start, so many are committed to the Bill and willing to make their expertise available to the House. I consider this to be the beginning of our conversation. I want to make myself available during the passage of the Bill. I shall be here most of the summer. We can continue our discussions on it in many different forms. I look forward to that because we are discussing an important Bill which will have a profound impact on our ability in the future to make use of scarce and unpredictable resources.
	The Bill has three sections: the first deals with nationally significant infrastructure; the second makes further changes to existing planning regimes; and the third deals with the Community Infrastructure Levy. I will focus primarily on the first part because, with no disrespect to the second and third parts, I think that is probably where most of our debate will lie in the House.
	There is a wide degree of consensus that the present system is quite simply not fit for purpose. Parts 1 to 8 are therefore about modernising our planning system so that we and future generations can meet the challenge of climate change while also meeting rising demand, which is generated, as we all know, not least by an ageing population. We have to ensure that there will be sufficient, reliable and affordable power to heat our homes, power our technologies, industries and vital services; and to guarantee sufficient clean water and sewage systems, and efficient transport for goods and services.
	In the simplest form, and on that scale, infrastructure means providing for the fundamentals of a sustainable society and economy, and doing so in a way which is accountable, careful, affordable and transparent. In turn, it also means ensuring that national benefits are balanced fairly against local impacts.
	Changing the planning system to meet these challenges—and to ensure it becomes greener in the process—means a major and essential break with the past. Let me explain why that is necessary. I take as an example the need to provide for future energy security. That is particularly salient at a time of rising fuel prices. We need to plan for energy security and therefore for diversity of supply. In the next few years we will have to replace generating stations with a capacity of 17 gigawatts. That is 22 per cent of the UK's electricity generating capacity.
	To achieve this, we are consulting on proposals that will deliver 30 to 35 per cent of our electricity from renewable sources by 2020. The timescales for energy are no less than timescales for water, waste, and transport. They are long term and complex, and the implications of failure of foresight and delivery are profound. We need to invest and to take decisions now on individual projects if we are to meet those deadlines and national needs.
	All the evidence—not least the Barker and the Eddington reports which laid the foundations for the Bill and which documented the scale and implications of failure—shows that the current planning system simply will not allow us to do that. Those failures come about due to a number of factors: first, there is no clear policy framework. Policy-making and decision-making are hopelessly confused. The function of the planning inquiry should be to interrogate individual projects, assess local impacts, and to decide whether they should be built in the place and manner proposed. However, in practice, inquiries into individual projects are frequently hijacked by the wider and more contentious debate into the merits of national policy, and whether any sort of infrastructure should be built at all.
	Secondly, there are numerous overlapping consent regimes. Heathrow Terminal 5 required 37 applications under seven pieces of legislation. The London Array wind farm project, which has the potential to provide 1 gigawatt of green energy—that is 750,000 homes—required applications under five pieces of legislation. Some parts of the application were decided by local planning authorities and others by Ministers in CLG and BERR. The inquiry processes for each of these regimes are different, resulting in confusion, duplication and delay. The delays affect renewables and progress towards a low carbon economy. On average, it takes 20 months for a large onshore wind farm to get planning permission.
	Thirdly, applications are sometimes not well prepared, let alone challenged or even consulted on at the local level. Promoters simply do not engage early enough or closely enough with interested parties and local communities.
	Fourthly, the inquiry processes are sometimes slow, intimidating and inefficient not just because of different regimes, different systems and different rules, but also because of an overdependence on cross-examination as the only way to test evidence. Sometimes loud voices are the only ones that are heard.
	Fifthly, further delays are introduced where, as is frequently the case, more than one Minister is involved in taking the final decision. These decisions, contrary to what is popularly believed, are not open to challenge in Parliament; they are not accountable directly to a constituency; and they can only be overturned in the courts. They are quasi-judicial decisions.
	This complexity means that our planning system breeds delay and acts as a deterrent to necessary applications coming forward when, as the Royal Town Planning Institute says, our competitors are looking to develop streamlined, fast and effective systems. These delays do not, perhaps, prevent those with the most resources having their say, but they make it incredibly hard for those poor in time and expertise to participate.
	The result is that we have struggled for years with a system more akin to Jarndyce and Jarndyce than one fit for a modern economy. The system puts the difficult decisions off until the last stage; it forces inquiries to spend enormous amounts of time debating what government policy is, and whether there is a need for infrastructure. The result is costly and there is uncertainty for communities as well as for developers.
	We have to deal with this deep structural fault in the system. While there have been plenty of attempts to improve the system through incremental change, it is not surprising that they have brought only limited relief. I hope on that basis that it is clear that this Bill is not just about speeding up the planning system; it is not about making life more comfortable for business; it is about clarifying the different stages of the process of policy-making and planning, clarifying the role of Ministers, and creating a new, more coherent, more effective and more productive process on which we can build our economy and society for the future.
	Rather than work chronologically through the Bill, it will be more useful if I talk about how it addresses those failures. First, the Bill identifies for the first time a range of nationally significant infrastructure projects that are so vital to the national interest that there must be a separate process for dealing with them; they are defined in detail in Part 3. Those thresholds have been chosen so as to preserve the devolution settlement: where decisions on infrastructure have been devolved to Welsh or Scottish Ministers, this continues to be the case.
	Secondly, the Bill clarifies national policy and separates out the policy-making process from the planning process. The Government will, under Part 2, set out a series of national policy statements to the public and to Parliament for consultation and challenge, explaining the need for infrastructure, principles and criteria which will indicate, in some cases, possible locations. These national policy statements will be planning documents of the highest order. National policy statements themselves will reflect existing policies and priorities where relevant, such as the protection of habitats or heritage. They will provide a clear framework for promoters to take investment decisions.
	The separation of policy-making from process and the creation of a single process for planning determination is resolved by the creation of an Infrastructure Planning Commission—the IPC—with the task of deciding whether or not individual projects should go ahead. It will consist of experts in a range of fields, including community engagement, planning, local government and the environment. The IPC will work within a clear framework of legal duties set by Parliament and policy set out in national policy statements by Ministers. We anticipate that it will deal with about 45 major infrastructure applications per year and a larger number of smaller projects, such as work on the electricity transmission network. Where no NPS is available, Ministers will continue to take decisions.
	Thirdly, the fundamental problem of overlapping consent regimes is resolved in Part 4, which replaces the cat's cradle of overlapping consents with a simplified consent regime. It sets out that projects classed as nationally significant infrastructure will henceforth require an order granting development consent under this Bill. It disapplies the need for such projects to seek consents under eight other regimes.
	Fourthly, the problem of the lack of preparation and poor consultation that dogs the presentation and understanding of development applications, and which leaves communities confused and often alienated, will be resolved by Part 5. The Bill creates not only a clear requirement that all applications must abide by national policy as set out in NPSs, but a new—mark this; it is important—pre-application process that will require developers to consult with the local community, to have regard to what they say and to show that they have done so. Before accepting any application, the Infrastructure Planning Commission will have to make sure that those tests have been met. In deciding this, it will have to have regard to any report by the relevant local council on the adequacy of consultation.
	Fifthly, the inquiry processes, particularly the examination processes, will be streamlined. Under Part 6, a body of independent commissioners with expertise in a wide range of fields will examine applications and, crucially, test the evidence themselves. For the first time, every part of the process—from application to final decision—will be carried out transparently by a single body, according to clear procedural rules.
	The new system will have three main phases: policy; project development; and the consideration of the application. Central to better decision-making will be the national policy statements and what they signify. This is the first stage of a new way of doing things. Ministers will, for the first time, have to set out an explicit case for the national need for relevant types of infrastructure and policy regarding how such infrastructure should be developed. The NPS will undergo an appraisal of sustainability integrating all economic, social and environmental aspects of policy. These are not White Papers. They will be, in effect, more like planning policy statements that will set the primary policy framework for the planning decisions to be taken by the IPC.
	This is new territory, and it will not be to the comfort of Ministers. For the first time, they will be making difficult decisions explicit, not behind doors in Whitehall. Parliament will, for the first time, see the full and complex picture of ministerial policy in planning matters. Individuals and local authorities will be able to have their say on how the assumptions and difficult choices made at national level could have implications in their local areas.
	We recognise that some forms of development—particularly nuclear power stations and aviation and airport projects—can be extremely controversial. In particular, there can be real debate about where that development should go. We have therefore said that we will set out explicitly in the nuclear and aviation NPSs the locations that we think are suitable for development. This will mean that Ministers, through the NPS, will be doing much more of the heavy lifting in the process. Parliament will have much greater influence over this crucial question. The IPC will be looking at a particular application, examining the more technical questions, assessing the adverse impacts of a particular proposal and looking at the benefits, costs and mitigation measures. We will ensure that where the draft NPS is locationally specific, local peoples' views are taken fully into account in the final NPS.
	We anticipate that we will bring forward about a dozen national policy statements to cover energy, transport, water and waste. Significantly—I know that noble Lords are profoundly interested in this—national infrastructure policy in NPSs will be tested, for the first time, not only in an effective consultation process but subject to parliamentary scrutiny. Ministers have agreed a process whereby the relevant Select Committees of the other place would consider draft NPSs and the results of public consultation. Where the Select Committee recommended that issues in the NPS demand further parliamentary debate, the Government have committed to make time in both Houses for such a debate. The Secretary of State would not formally designate an NPS until he or she published a revised draft and laid a Statement before Parliament explaining how account had been taken of any resolutions made by either House.
	I stress that we have listened hard and responded to critics of the Bill on sustainability, parliamentary scrutiny, public participation, and accountability. Sustainability is the key imperative guiding the Bill. It is about sustaining resources as well as jobs and incomes. We have been clear about the duty of sustainability; it is set out in Clause 10 and places Ministers under a sustainable development duty in relation to all NPSs. The new regime will also be subject to the provisions of the Climate Change Bill, which imposes a general duty on Ministers to meet carbon budgets and to publish proposals and policies for meeting them. Ministers will have to explain precisely how national demand is to be managed in the light of environmental and social concerns.
	Furthermore, the process will allow not one opportunity at the final planning stage for people to be involved in decisions which affect them, but three opportunities at three critical stages. First, we want there to be a proper national debate about the need for key infrastructure, as I have explained. Secondly, the pre-application provisions are entirely new. Developers will have to consult with local communities before even submitting an application. Thirdly, the IPC process itself has been deliberately designed to boost opportunities for public participation; to make it easier for all interested parties to get their points of view across. The IPC will take evidence in the first instance via written representations and will test both written and oral evidence by means of direct questioning, not least because much of the evidence is technical but, additionally, so that members of the public can have direct access to the IPC. The IPC will have to hold an "open floor" oral hearing whenever an interested party requests one; and any interested party would have a right to be heard at this point. The IPC would also hold oral hearings whenever it felt this was necessary to examine specific issues.
	As I have said, in most circumstances the IPC will test evidence itself through direct questioning, rather than relying on cross-examination, because we recognise that a legalistic and adversarial approach creates barriers. How many people or groups give up at the gate of a public inquiry because they cannot afford the legal fees?
	Finally, on ministerial accountability, the House will recognise that Ministers' decisions are quasi-judicial, not political. They are open to challenge in a court of law rather than by parliamentary process. In the Bill, we are setting up a more accountable process. Decisions must be made in accordance with stated ministerial policy as scrutinised by Parliament and the public, unless the adverse impacts of a particular proposal outweigh the benefits, or to approve it would be against the law.
	We have constructed not only a coherent process but an accountable one, which makes it clear that Ministers make and are accountable for policy, and the planning decision can appropriately be left to an independent body bound by that policy. Indeed, because there is an element of judge and jury in their own cause, we do not think that Ministers should be involved. We have constructed a process which will, critically, lead to better and faster decisions on projects which by their nature are complex and technically difficult.
	We have also built in additional safeguards. Noble Lords should note that where a national policy statement is not available or is out of date, the IPC will recommend a course of action to the Secretary of State, who will continue to take final decisions. The Secretary of State also has an essential power to intervene in a case where the national policy statement requires revision or where national security interests arise. As noble Lords will know, we have committed to review the process two years after the establishment of the IPC, to verify that it is working well.
	Part 9 sets out a series of measures aiming to declutter the applications system in the wider town and country planning system. They are just a part of a widespread continuing improvement to the planning system we set out in the White Paper and which we are implementing through secondary legislation and administrative changes. This part of the Bill also has an enabling provision to allow regional planning bodies to delegate some of their planning functions by agreement to regional development agencies. This is not like the transfer of powers from regional assemblies to RDAs—that will require new primary legislation. These reforms build on the more radical package of changes to the planning system introduced through the Planning and Compulsory Purchase Act 2004.
	Part 9 also contains provision to set up local member review bodies to determine certain planning appeals instead of the Secretary of State as now. We have listened carefully to stakeholder views on this provision and concluded that, while it may bring some benefit, it risks distracting local authorities, particularly at a time when there is an urgent need for them to focus on strategic plans and issues. We therefore intend to drop this provision at Committee stage.
	Part 11 gives powers to the Secretary of State to establish a community infrastructure levy or CIL by regulations. In order to deliver new housing and economic growth in a sustainable way, it is vitally important to put in place appropriate levels of infrastructure. It is right and fair that local communities should benefit more in this way from the uplifts in land value arising from planning permission to finance the infrastructure needed to support growth. CIL represents a way for local authorities to levy a charge on new developments to contribute to the financing of infrastructure needed to support that growth. Local authorities can choose whether to establish a CIL in their area.
	CIL would take the form of standard charges, such as so many pounds per residential unit or per metre squared of floor space, and would be based on a costed assessment of the local infrastructure requirements needed to support the development planned by the local planning authority. The LPA's proposed level of CIL will be subject to testing and consultation with developers and the local community to ensure that it is set at levels which do not make development unviable. The need to ensure that CIL facilitates development rather than frustrates it is of utmost importance.
	CIL gives the property and development industry increased certainty about the amount developers will be asked to contribute during what we recognise is a period of uncertainty. It offers greater predictability and transparency over the current system of planning obligations. This will help to inform land deals.
	CIL will also increase fairness by broadening the range of developments contributing to infrastructure. It will help better to address the cumulative impact of small developments, which currently contribute relatively little towards the infrastructure needs they create. We intend that almost all new residential and commercial developments will be liable to pay the community infrastructure levy subject to de minimis thresholds which will exclude householder development by homeowners.
	We are clear that there may be a case for exemptions from the need to pay CIL and some noble Lords have already been involved in discussions with the department regarding the position of charities. We are actively working with the charity sector to understand its concerns and how any exemptions from CIL should be formulated to be fair, objective and lawful. We are also working closely with housing stakeholders to work through their concerns regarding affordable housing.
	Noble Lords will be aware that the proposals for CIL are being taken forward by the Government in preference to previous proposals for a planning gain supplement. CIL proposals have been broadly welcomed by the property industry and local government. Indeed, the Opposition have said that "the levy is acceptable". Therefore, we believe that we have a broad consensus that CIL is the right way forward.
	It will not have escaped noble Lords' notice that the Bill's powers are broad in nature to give flexibility over time, to reflect lessons learnt from the application of CIL in practice and to permit different arrangements in different areas. I am aware that the Delegated Powers and Regulatory Reform Committee has recently given its opinion on the clauses which we are considering and will return to in due course.
	We will continue to test details of the regime with key stakeholders and we intend to engage in a full consultation exercise on the CIL regulations. We will shortly publish a document on the levy, which will set out in greater detail how it is envisaged that it will operate, and will, I hope, aid noble Lords in their consideration of these clauses when we discuss them in Committee.
	The Bill provides a very welcome reform of the planning system which will hugely benefit our communities and our economy. The new process for planning for major infrastructure must be one which builds on the best expertise and judgments of politicians, people, parliamentarians, developers and experts. The Bill represents a new approach to decision-making, to partnership in government and development, to the place and accountability of Ministers, and to the way planning decisions are made and accounted for to the people most affected by those decisions. I commend it to the House.
	Moved, That the Bill be now read a second time.—(Baroness Andrews.)

Lord Dixon-Smith: My Lords, the Government Chief Whip apologised to the House for the dilemma in which we find ourselves. However, she will understand why I register what I hope will be the only protest tonight that we have to start the Second Reading of such a major Bill at such an hour, particularly in the light of current practice in this House. That is no way to manage our business.
	I declare my interest. For better or worse, I am a landowner in the county of Essex. Things tend to happen to land in that county and some of it gets developed. I am grateful to the noble Baroness for her full exposition of the Bill. She made a very good case for it at such a rapid-fire rate of progress that I cannot hope to match her style. I am sure there is no dissension anywhere on the need to reform the planning system. I have observed, and for a time participated in, that system for many years. When I began my involvement in the mid-1960s, the planning process was still a facilitator for development; it was not part of the problem, as it is today. Public consultation was introduced in 1968 because of the controversial nature of so many decisions. Even small decisions which have a local effect can none the less be controversial. We need to recognise that that difficulty will continue. This Bill seeks to tackle only a very narrow spectrum of development. The public and the construction industry will continue to experience general problems with the planning process for many years to come unless it becomes necessary to look further at the whole system, as I suspect will be the case.
	Systemic delay, cost and administrative complexity have driven some developments abroad. For example, in the climate change field a wave electricity generating company was driven to Portugal because it took more than five years to get an approval here whereas it could be given in Portugal in 24 months. That is not satisfactory. We have to add to that 10 years of prevarication by this Government on the whole question of electricity generation and how the problem should be handled. Suddenly, this Bill is before us, driven by a need to secure our energy supplies in the short-term future. "Short term" to me in this context means 10 years. That is no way to manage a ship.
	Of course, other factors are also in play. Climate change is now a well defined problem, and the Climate Change Bill passed through this House earlier this year. We should think about that for a moment. That Bill targeted this country's carbon dioxide reduction at 60 per cent by 2050. But developing scientific knowledge might suggest that there should now be an 80 per cent reduction. The consequences of that decision will have serious planning implications across the whole spectrum of development. The population is still rising rapidly and economic growth will continue. Both are factors that will increase energy demand at a time when people seem to think that we can work with less energy. We need to think carefully about an economy with 80 per cent of its carbon dioxide removed. You could say that carbon dioxide is a proxy for energy and that energy supply is a proxy for the use of fossil fuels. If 80 per cent of our carbon dioxide emissions are removed, by 2050 the only things that use carbon dioxide will be either where the carbon dioxide can be captured and stored or where there is no other alternative for the industry. There are industries in that classification. Everything else across the spectrum will have to change.
	There is a parallel thought to this, if we are in the business of electricity generation. We need to make use of the huge amount of energy that pours out of our power stations in the form of waste heat. It more than equals the electricity that the industry supplies. That could have the most profound implications for the way we site power stations.
	I turn to the Bill. I have a note from the chair of the UK Environmental Law Association's working party on planning and sustainable development, which expresses concern that the details in Part 1 of the Bill for handling nationally significant infrastructure projects and which set up the IPC as the ultimate decision maker will deliver a regime that is undemocratic and unlawful in terms of compliance with the UK's European and international obligations under the Strategic Environmental Assessment Directive, the Environmental Impact Assessment Directive, the habitats directives and the Aarhus Convention. I do not know whether those views have arrived on the noble Baroness's desk—I am assured that they will do so in due course—and nor do I have the expertise to test those grounds for concern. However, I have sufficient knowledge to be worried that such views can be expressed by such a body. It may be unrealistic to expect the noble Baroness to reply in detail to that concern tonight. I would be the first to recognise that that will require a full and detailed answer, but I hope that she may touch on the matter in her response to the debate and perhaps promise a full reply in due course.
	This is not the Bill that we would have introduced if we were in the Government's position. We would have preferred a more evolutionary approach to the Government's revolutionary one. We would have worked at developing the idea of consultation at the pre-planning application stage and developing ideas made available by that change to evolve the format of planning inquiries. We would have developed mechanisms to prevent duplication in the presentation of evidence to inquiries, and so on. We may well need to consider these different approaches to the process at later stages of the Bill.
	There is a fundamental principle behind those suggestions, which is that the present planning system ensures, despite what the noble Baroness said, that decisions are taken by politicians. Most of the decisions are, of course, taken by local politicians and the system is all the better for that local control. Even decisions made by planning officers are the responsibility of members, because they make the powers of delegation. Major projects are dealt with by the Secretary of State, either as the result of appeals or call-in, but major decisions, as the Minister said, will become the subject of this Bill, because they will be determined by the Infrastructure Planning Commission, which will be a commission of appointees.
	The public accept the results of planning decisions—I have a lot of experience—because a decision is taken by a politician. Although there may be arguments about the nature of the responsibility of Ministers through Parliament, all Ministers and all Governments—we may have to remember this in the near future—are subject to political control, because, if push becomes shove, there can always be a vote of no confidence in a Government. The argument that politics has no influence in the decisions of Ministers is erroneous. It may not be a consideration which they have formally to take into account, but if they do not have some regard as to what is going on behind their backs, they may finish up in trouble.
	That democratic final point of decision has long been the factor that has meant that the public have accepted often uncomfortable decisions, and we need to bear that in mind and keep it very much as part of any system. That means that there are severe questions about the way in which the Government are determined to bring in their Infrastructure Planning Commission.
	I turn to the community infrastructure levy. Another long-standing principle of the planning system has been that the community that gives rise to and is affected by development and its consequences should share a portion of the enhanced value that is otherwise enjoyed by a small number of people. This is simply to ensure that the infrastructure that a major development generates is provided for the benefit of the community. That is achieved, as the noble Baroness said, under Section 106 agreements. The levy is paid when development commences after the granting of planning permission. The great virtue of this system is that the benefit is retained locally, but the process can be time-consuming and uncertain.
	The Bill contains the Government's second attempt to deal with this issue. The noble Baroness said that the Government had considered the planning gain supplement for which paving legislation was passed only a little more than a year ago. It must be right—although it is not in the Bill—that that legislation is repealed if we are to pass the successor system that the Government wish to put in its place. If we do not repeal it, there will always be uncertainty as to what the Government's real intentions are. I have already heard one rumour that the Government's real intentions are that the CIL should fail and that there will be a return to the PGS. I would not wish to have to accept that rumour, but that is the nature of the way that the human mind works. That is certainly one area on which we need to improve.
	It is also somewhat odd that, as the Bill is drafted, we have no details for this infrastructure levy. Under the Bill, a small extension on a house could pay the levy, as, curiously enough, could Railtrack producing a new railway line, which is development. The fact that it is producing infrastructure is neither here nor there; technically, from the way in which the Bill is worded, that appears to be the case.
	Thirdly and finally—and, sadly, worst of all—there is no exemption from CIL for charities. Charities have always been exempt from tax and from any of these development questions. I suggest that the costs that might be imposed on them will be completely unreasonable and unacceptable across the whole of society. Of course, there is a way out for the Government on this. This is paving legislation, as the noble Baroness again pointed out, and if we have the draft regulations before we reach the Committee stage so that we know how the infrastructure levy is to work, that may save a great deal of time.
	All these various considerations indicate a long and detailed Committee stage. It is unfortunate that that will have to happen in the spillover period of a Session, as I cannot think that it is wise to have to consider such an important Bill with our backs to the wall. However, that is the Government's choice. I hope that they do not live to regret it.

Baroness Hamwee: My Lords, I start by thanking the Minister, who will probably be only too aware that everyone's backs will be to the wall. I also thank, through the medium of Hansard, all the organisations which have briefed or lobbied noble Lords so fully right up to the very start of this debate. It is not possible at Second Reading to do justice to all that we have heard.
	Of course, those briefings are not uniform; they divide very sharply into two groups. The first is "business", if I can characterise it as that using the term in a very wide sense. This group supports the proposals. It would be unfair to say that it supports development at any price but it comes with a considerable presumption in favour of development. The second group comprises those whose concerns are about environmental issues and mechanisms, and they have not been quieted by the proceedings so far. It is sad that the Government have not been able to bring the two sides together. I read what either side—I characterise them as "sides"—says as being not intransigent but, rather, thoughtful.
	However, there is intransigence in the air. It is intransigence by the Government or an inability to see some fundamental points in the same way as others of us do. The Bill is about planning—or about achieving development, because the whole point is to build—but underlying that is the basic constitutional matter of democratic accountability both in the role of the Infrastructure Planning Commission and the production of national policy statements and in several other issues with a slightly less high profile.
	How can the Government be so resistant on aspects of their proposals? I believe—I say this with sadness but not lightly—that it is because the Executive now has so little regard for Parliament. That is a mindset which I do not think our Minister shares but it is becoming very apparent across government.
	The Government dismiss calls for decisions on major projects to be those of the Secretary of State on the basis that what she has now is a quasi-judicial role and so nothing will be lost. However—here I would make points very similar to those raised by the noble Lord, Lord Dixon-Smith—whether or not one shares that view, and I have to say that I am persuaded otherwise, it fails to recognise the reality that the public see these things as political. Planning is a political process. It is about balancing objectives and it is multifaceted—and multi-fascinating, too. As the RSPB says in one of the many briefings, it is too important to be left to the planners.
	We do not know from the Bill what qualifications the members of the new commission will have. From time to time, people call it the "Independent Planning Commission"—I think I have done so myself—and certainly the commissioners are described as independent experts, but independent of whom and expert in what? The Government say that there will be clear benefits in that there will be independent, objective and comprehensive investigation. I thought that that was what the planning inspectors did now. What procedures will there be that, if they are beneficial, cannot be used by the inspectorate with a few changes in the rules?
	Just how much will we see in two years? According to the Prime Minister, we will see eight nuclear power stations, but this concession—so called—of review after two years seems to me to have been the flimsiest possible. What experience can we draw on in so short a time?
	Indeed, how quickly should we expect to see the national policy statements? According to the briefing pack, the Government say that they will provide a national debate on the infrastructure that the country needs to deliver established policies. I have to say that the logic of sorting out the policy first appeals to me very much, but what troubles me is what the practice will be. Will the NPSs cover all the right issues in the right way? The Minister referred to sustainability, but I am sure that sustainability and biodiversity will be a thread that runs through our debates as regards the IPC, the NPSs and the RSSs—and, I dare say, other acronyms too.
	To take one intriguing question, because of their very status, could the national policy statements be claimed to be of overriding public interest and so override the EU habitats directive? Will their application to individual projects be clear? How long will it take to produce them? This is important because, as we have heard from the Minister tonight, the new system will not kick in until the relevant national policy statement is in place, and some of us may argue that more than one statement may be relevant to a particular project. What happens if they are out of kilter with the policies of a new Government? What is their status as regards decisions taken locally? Are they more material than other material considerations? Indeed, what is the comparative status for the IPC? Furthermore, what role, and what real input, will Parliament have? That, too, will be something that we discuss—the role of Parliament and of both Houses. It is right that the Government should be seen to take certain policy decisions, but should they do so by way of unamendable policy?
	I suspect that in our discussions, if we become too caught up in the projects, we—perhaps I should apply this only to myself—will have quite a difficulty in focusing on the procedure and distinguishing it from the policies and projects. Some will be very desirable to some noble Lords and some will be very undesirable, and it will then be quite hard to follow through the logic. Therefore, I hope to be able to maintain that distinction.
	I have not yet read the White Paper, which the noble Baroness's department published last week, but I read the Secretary of State's Statement when it was published. She said: "People are perfectly rational"—actually, what she said according to the printout was that they are "perfectly rationale" but I do not suppose that she really said that. She continued:
	"They will get involved if they can see the change they make. If they do not, they will soon fall away. People are not apathetic: almost 70 per cent of people say that they want a say in how the country is run. People want to be involved, but the structures and cultures of politics alienate them".—[Official Report, Commons; 9/7/08; col. 1412.]
	Quite so.
	We are supposed to produce garlic and call in the exorcists when we refer to T5, but, at the time of that inquiry and the run-up to it, I remember thinking how difficult the process was for objectors. Then I listened to Dermot Cox who was leading the principal protest coalition and how vividly he explained the importance of the status of objectors and the mechanisms available to them, agonising as it must have been for all of those who attended.
	To think that a developer-led consultation could be adequate is, at least, disingenuous. A developer should consult, but should not be in a position to say, "X thousand people will be affected, but only Y turned up; QED there is no widespread objection". The default position at hearings—written representations, reading out your essay as I am doing now—is a world away from engagement and involvement. This is one of many points in the Bill where matters are left to the Secretary of State: a relevant representation must contain material of a "prescribed description"—I suppose prescribed by the Secretary of State. There is a place for prescription, for regulation and for orders. That may be a relatively modest example.
	My noble friend Lord Goodhart will speak as chair of the Delegated Powers and Regulatory Reform Committee. I have already commented to him privately that I think his committee's report is exceptionally polite. It is very much in Lords-speak, but then we all speak the language and we all know that the stiletto can be more effective than the cudgel. The committee's report deals with the community infrastructure levy. How can the Government justify retaining those clauses at all without detail? That is the part of the Bill that the Government should drop. The rumour I have heard—I have not heard the one about planning gain supplement, but it has a ring about it—is that no one has been available to draft the flesh for the skeleton. Even if it is done by October, I do not think that that will fully answer the point because the Bill will still allow for change. The Minister has described that as allowing flexibility over time, which I suppose is the other side of that coin.
	The Local Government Association delicately expressed its dismay at the lack of time to debate CIL in the Commons. And there is much to debate. How it will relate to Section 106? what effects there will be on what is now the subject of Section 106 agreements, particularly affordable housing, which seems to be given second class status by the Bill, although the Minister has trailed some changes? There is also the impact on charities which will be subject to it and much more. The pity is that so much is unclear. We on these Benches support the principle that local communities should share the benefits of planning gain. One of the advantages of Section 106 is that a community that feels that it is having a development foisted on it can, at least, see the benefit.
	There is so much to say about the Bill—issues of accountability, mechanisms and workability—and many noble Lords wish to speak. Several of my noble friends will cover different topics so we will keep much for later stages. The Minister will have gathered that we on these Benches are not enthusiasts for the whole Bill—and that, too, is Lords-speak.

Lord Hart of Chilton: My Lords, I support the Bill. I too must declare an interest. For most of my working professional life, before I was captured by the noble and learned Lord, Lord Irvine of Lairg, I was involved in promoting or objecting to schemes of development. In so doing, I have learnt many things: the shy breeding habits of the Siberian tiger and the lowland gorilla and the fertility cycle of the household fly. I have discovered those things by spending many happy weeks, months and years at the laborious process called a planning inquiry and I have concluded that decisions on major infrastructure can and should be achieved quicker and at much less cost. In my time I have attended a huge number of public inquiries up and down the country and, as a result, I have been in the courts more times than I care to recall.
	I have a great admiration for the planning Bar and its skills of advocacy and cross-examination, but the model of a planning system based on court procedure must be overhauled for large-scale infrastructure projects. It is too cumbersome. Not only does an inquiry take time, but an inspector's report and the ministerial decision take even longer. I had clients who, as a result, decided not to engage with the inquiry system at all.
	Since the end of the 19th century, the public local inquiry has been the instrument of British administrative procedure. The hallmarks of the inquiry are fairness, openness and impartiality. Over the years, large-scale infrastructure proposals have placed a huge and unacceptable strain on the inquiry system. Forward planning guidance, whether in the form of the development plan—often outdated—White Papers, ministerial statements or policy guidance, has often been very general and has given no real help to questions of where new infrastructure is to be located. Inquiries have become caught up in debates about policy-making and have raised issues far beyond local significance. Alternative locations, alternative developments and, ultimately, the need for any development at all have become the order of the day.
	By my day, inquiries had become massive debating fora with armies of expensive experts and counsel ranged against each other, many parties with unequal firepower. There is no doubt that cross-examination can be valuable when conflicting assumptions have to be examined and challenged, but its value can be overestimated. It is a costly and time-consuming process only really suited to a two-party dispute with equal representation.
	The proposals in this Bill are the first in a generation to seek to resolve the problems of the past. They separate a policy process from a site-specific inquiry process. In both cases, they involve new forms of consultation with local authorities, the public and Parliament. They occur at three stages: the policy stage, the applications stage and the independent commission hearing stage. As the text and principles of the Bill are thoroughly assessed in this House, I am sure that the Government will be listening carefully.
	Attention will obviously focus on the process of consultation and public engagement as well as ministerial accountability. Do the new processes pass the tests of openness, fairness and impartiality and do they pass the accountability test? I think they provide a sensible framework capable of doing so.
	As far as policy is concerned, the new process proposed is a great improvement. Policy will be published for consultation involving local, regional and informal bodies likely to have an interest. Parliament is consulted via a Select Committee, which could lead to a full House debate. There is an opportunity for legal challenge, and the Government acknowledge that to give clarity and certainty they must look forward for up to 25 years to examine demand, capacity and need. They must keep policy under review. Of course, it is only when the first statement appears that we can judge its quality but the principles seem correct and are much to be preferred to the current position of overlapping policy documents, many of which, as I have indicated, lack clarity and are out of date.
	As far as the process before the new independent planning commission is concerned, much will depend upon the quality of the experience and expertise of the independent commissioners, who will clearly need training in the conduct of commission hearings. They will need forensic skills as well as expertise. The existing Planning Inspectorate is of high quality and experience, and some of its employees may well transfer to the commission. I hope so, but the independence of the commission is a strength, not a weakness. Ministers are still accountable for the overall performance of the commission. Appointments and performance are to be scrutinised by Parliament, and its committees can call Ministers and the chairman to account.
	In law, a fair hearing does not automatically entitle anyone to an opportunity to be heard orally or to cross-examine, but a key question will be when the IPC is asked to allow oral submissions and cross-examination. The commission must be flexible, but the new process is clearly even-handed between the applicant and the objector, unlike the present system.
	The Bill is to be welcomed as a sensible attempt to reform the planning system and cut cost and delay, but at the same time to maintain consultation and the involvement at all stages in the process of those who have a legitimate claim to be carefully considered. There is the promise of a review in two years time, but the basic structure is sound, and I support it. I trust the Government will will the substantial resources needed to make it work.

Lord Best: My Lords, unsurprisingly my remarks on the Bill concern first, the proposed arrangements for handling major infrastructure projects, and secondly, the community infrastructure levy. On both these points, my perspective is one of support for the Government's reasons for introducing the planned new measures.
	From 1999 to 2001, I served on the then Department of Trade and Industry's foresight panel on the built environment and co-chaired a study on major infrastructure projects with Robert Upton, secretary general then and now of the Royal Town Planning Institute. Our study concluded, not least following an enlightening visit to Holland, that decisions on nationally significant infrastructure projects should be the subject of national policy statements and of decisions taken at the national level after full consultation on the principles behind the policy statements had been concluded. The international evidence we assembled certainly pointed to the wisdom of this approach, which leads me to welcome the Government's conceptual framework for considering major infrastructure plans and for establishing an infrastructure planning commission.
	To curry favour with your Lordships, bearing in mind the number of speakers this evening, I shall cut to the chase and my second issue, which concerns the community infrastructure levy. I am quite sure the Government have brought forward a basis for funding some of the costs for infrastructure that is significantly better than the previous ideas for a planning gain supplement. Even in the difficult market conditions ahead, a levy that extracts some funding from the increased value of land following planning consent could be a significant mechanism for meeting essential infrastructure costs. However, there are two major hazards with the levy. First, there are considerable anxieties, which have already been raised in this debate, for charities and for housing associations. If housing associations are required to bear an additional levy, they will need higher levels of social housing grant, which simply recycles funds from one government department to another, or, worse, if the level of grant funding remains the same, the community infrastructure levy will mean fewer affordable homes, which would be a terrible outcome. I hope the Minister will be able to bring forward amendments to address these concerns.
	Secondly, and more broadly, there are the dangers of the community infrastructure levy being the final straw that prevents neighbourhood regeneration or required development of new homes proceeding because it means that potential schemes would make a loss. I have very little sympathy with the housebuilders' arguments that higher standard of design, accessibility or a quota of affordable housing should be abandoned now that the housebuilding industry is in such a parlous state. This is no time to renege on obligations and commitments to improve design, to achieve carbon-neutral housebuilding by 2016, full lifetime home standards by 2013 and more affordable homes through the Section 106 agreements. I am sympathetic to the point that there is a limit to how much can be extracted through planning gain—through the increase in value created by the granting of planning permission, especially for contaminated, brownfield and complex regeneration projects.
	Adding a community infrastructure levy will be a step too far in some cases, and local authorities must be given the flexibility to vary or waive the levy where that pushes projects over the line of financial liability. Rather, this seems the moment for some Keynesian economics, with central government funding the roads and other infrastructure which, in better times, the community infrastructure levy can support. I look forward to debating those key ingredients of the Bill as the legislation moves forward, but in respect of both Bills, I bring a positive and supportive recognition of the Government's reasoning behind the new measures.

The Lord Bishop of Liverpool: My Lords, I thank the Minister for the clarity and the conviction of her exposition of the Bill. Planning is clearly about creating safe, secure and healthy landscapes and environments in which communities can flourish. As we all know today, they must be sustainable and as carbon-neutral as possible. I welcome the duty on Ministers expressed in the Bill to contribute to sustainable development in the preparation of national policy statements. I also welcome the Government's commitment, given in the other place, to fulfilling the demands of the Climate Change Bill through the mechanisms in the Planning Bill.
	My concern, however, is that the Bill does not go far enough and will not deliver sustainable development or contribute sufficiently towards the move to a low-carbon economy required by the Climate Change Bill. It may be there in spirit, but it is not there in the letter of the law. Without the law unequivocally on the side of carbon reduction, there are now too many pressures to take us in an opposite direction of carbon profligacy.
	The Climate Change Bill is an overarching Bill affecting policy across government departments. We are treading a new path with the Climate Change Bill and we must work together on how to draw up future legislation that interweaves with that Bill. The Planning Bill is an opportunity to do that but, as presently drafted, it fails fully to take up that opportunity. Despite the Minister's assurances, there is nothing legally binding to say that decisions taken under the Planning Bill will take climate change into account. We are to take on trust that climate considerations will be embedded in decision-making, but neither Bill makes clear how to do that or makes specific provision for it.
	The Climate Change Bill requires the Secretary of State to establish a process for managing the reduction of carbon emissions, but there is no obligation on the Secretary of State in either Bill to consider climate change during the preparation of national policy statements. Surely, there must be a requirement on the Secretary of State to consider climate issues in framing the national policy statement, in line with the provisions of the Climate Change Bill and recognised carbon budgets. At the moment, it is unclear how the carbon footprint of each national policy statement will be considered as a whole or, more importantly, in relation to one another.
	I also believe that the new Infrastructure Planning Commission must have a legal duty to reduce carbon emissions. That is essential if we are to hit our 2020 and 2050 targets for emissions. Planning of major infrastructure provides a way to ensure the delivery of a low-carbon economy. That is possible only if carbon-intensive infrastructure is closely examined for its impact on overall emissions.
	The IPC will have the authority to grant permission for the building of major infrastructure, including airports and power stations. It is vital that the process of decision-making fully considers climate change, with the objective of supporting the Government's own carbon reduction trajectories. There is anxiety in the air. Observers fear that, as the economy turns, there is increasing pressure on the Government to reduce the level of ambition in carbon reduction and sustainability. A sustainable development duty for the IPC is an important environmental safeguard, and would mirror the duties of other developments. The Bill should make clear what factors need to be taken into account in contributing to its achievement. Although local government already has a sustainable development duty, and will have a new climate duty as a result of the Bill, no such duty or obligation in the Bill applies to the Government or the IPC.
	I urge the Government to be clear about the importance of considering climate change in the planning of major infrastructure. As it stands, neither policy-makers nor decision-makers can be clear about the weight and importance that must be given to this issue if we are to honour our international obligation to reduce carbon emissions and to achieve the reduction in emissions required by the Climate Change Bill. The Minister may reply that this is assumed in the Bill, but I urge the Government to signal this intention explicitly and place a clear duty on both the Secretary of State and the IPC to consider climate change in decision-making on major infrastructure. We are in effect asking for consistency and for joined-up Bills as a proper expression of joined-up government.

Lord Boyd of Duncansby: My Lords, I declare an interest as a legal associate of the Royal Town Planning Institute and as a solicitor with Dundas & Wilson, having advised clients mostly in Scotland but also in England. For many years, I also earned a happy living as a member of a small but, I assure noble Lords, highly select band of the planning Bar in Scotland, going to planning inquiries and representing developers, local authorities and others in court.
	I warmly welcome the Bill, and I shall address consents for major infrastructure projects. Not long ago, this House debated the Climate Change Bill, and there was support on all sides for its principle. There was, however, a strong realisation that swift action is necessary if we are to reduce emissions and slow global warming. To achieve these objectives, we have set ourselves challenging targets on various aspects of energy, particularly the development of renewable energy, and the Government have committed themselves to the construction of new nuclear power stations.
	If we are to attempt to achieve these objectives, we must have an improved planning regime. Some sceptics have said that the Government's holding up of the terminal 5 application is atypical of the delays that are inherent in the planning system. Sadly, that is not the case. Kate Barker's interim report on land use planning gives some case studies. I do not wish to go through them all, but I remind noble Lords that the Heathrow terminal 5 inquiry took 46 months, and the M6 toll road process took 65 months from beginning to end—85 months if you include delays occasioned by a court challenge. The Dibden Bay port application, which apparently cost the applicants £45 million to make, took 14 months from application to inquiry, 13 months in inquiry, nine months from close of inquiry to the report, and seven months thereafter for a decision—a total of 43 months. I have never been on a case that lasted 13 months; even the Lockerbie trial lasted substantially less than that.
	The reasons for the delays are manifest; the Minister touched on them in her opening remarks. Applications often do not take account of all the consultation responses. One benefit of the Bill is the requirement on applicants to consult before the application goes in and to take account of the consultation responses. It is perfectly plain that there is a lack of clear government policy, which was a substantial cause of the delay in the T5 and the Sizewell B inquiries. National policy statements will address that. The inquiry time is long and the double decision-making process whereby the person who listens to the inquiry is not the ultimate decision-maker—the Minister is—involves an added process.
	The noble Lord, Lord Dixon-Smith, referred to the note by the chair of the United Kingdom Environmental Law Association, of which I have seen a draft. In Committee, we will no doubt debate many of the association's concerns. My first reaction was to ask whether the association had read the planning White Paper, which clearly addresses strategic environmental assessments, environmental impact assessments and the habitats directive. It is clear, for example, that the national policy statement will have to be subject to a strategic environmental assessment. It is a very significant step forward for those of us who take the view that the national policy statement should be the foundation of our decision-making process.
	I shall briefly address two issues. The first is the idea—which my noble friend Lord Hart, touched on—that the adversarial process is nowadays a way of properly testing the evidence. A good cross-examination can sometimes expose overblown claims and the weaknesses in a case, but my experience is that the issues are usually clear from the beginning and that the cross-examination can often be of a variable quality; it is often tedious and hair-splitting. The perception that an individual who objects will be subject to a kind of Crown Court cross-examination is daunting to many people and will put them off. That is the very antithesis of development. If we expect objectors to sit through 46 months of an inquiry, for example, we are very far from the idea of involving the community in the process.
	The second issue is the thorny matter of accountability, to which we will no doubt return in Committee and at further stages of the Bill. I question the value of parliamentary accountability in this process. When did the Secretary of State last personally account to Parliament for a particular decision? In reality, the accountability now for decision-making processes is through the courts. That is where the IPC will be held accountable for its actions. I support the Government on this and wish them well with the Bill.

Lord Jenkin of Roding: My Lords, like others who have spoken, I want to concentrate on the issues surrounding the two main innovations—the Infrastructure Planning Commission and the national policy statements. I do not think that any of us would disagree with the description of the present system given by the Secretary of State as over-complicated, bureaucratic and cumbersome. Like others, I in my past have had to take my part in that.
	There is also widespread acceptance that we need a lot of new investment in large infrastructure programmes. There is no doubt of that. The central issue is how to achieve these infrastructure programmes with a swifter, less bureaucratic planning process, while retaining the accountability of those who take the decisions. Let me say straightaway that a number of the Government's proposals are very welcome: the new single consent procedure; the new insistence on thorough pre-application consultation—that is hugely important; and the much tighter statutory timetables. But when one looks at the detail of these two major innovations, they are subject to serious controversy, both in the country and in another place.
	Let me take first the national policy statements. Again, let me say that I warmly support this proposal. Anyone who has looked at planning decisions which have incorporated a ministerial recommendation—for instance, on a gas storage project that the noble Baroness may well remember—will see that the ministerial input was reduced to one sentence in a 12-page decision. The new statements, which are to be fewer and more authoritative, on the most significant national infrastructure needs will go a long way to dealing with that. There is a lot about this that I welcome, but the controversy surrounds the procedure whereby they are to be approved. We are told that the government statements will be subject to scrutiny by Parliament. In my view, if that is all it is—and notwithstanding the introduction at a late stage in another place of Clause 9—it will not of itself carry the credibility that is absolutely essential if these policy statements are to form the basis of major infrastructure decisions.
	The procedure is not like delegated legislation—you can vote but you cannot amend it; indeed, in most cases it goes through on the nod—but is more like Select Committee reports where detailed evidence can be taken on a wide range of subjects, but all you do is make recommendations. To my mind, if national policy statements are to carry the credibility and weight they will have to have in supporting this whole process, Parliament must have to approve them in a positive vote. I should like to ask one further question: if you are going to shorten the process, would it not make sense for both Houses to operate in a joint capacity in this area rather than consideration first in one Chamber and then the other? However, what is absolutely essential is that the process must have the backing of the credibility and authority of full parliamentary assent. That is not what is proposed, but it is important that it should be.
	I turn to the Infrastructure Planning Commission, an independent—there may be some question about that—appointed body of experts, and a decision-making body with the power to approve individual planning applications. It says in the White Paper and has been repeated today that its decisions will be taken,
	"within the framework of the relevant national policy statement".
	But it is also said that the members of the commission are to be accountable to Ministers and to Parliament. One has to ask: how are they to be accountable? Ministers appoint the members of the commission, and that is spelt out fully in Schedule 1, but the circumstances under which they can be removed are extremely limited, being restricted to being,
	"unable or unwilling to perform ... convicted of a criminal offence, or ... otherwise unfit to perform the duties of the office".
	How is this commission to be accountable to Ministers? If, once appointed, the members serve for the full term, is the commission not simply an unelected quango? We need more details about that, and about the commission's accountability to Parliament. The chairman or chief executive could be hauled before a Select Committee, and that would give them an uncomfortable time, but Parliament cannot get rid of them. They can be questioned, but Parliament cannot actually get rid of them.
	I am impressed by the huge amount of support that has come from a wide range of organisations that are responsible for infrastructure investment. They are in favour of the IPC process. Business, public utilities, the energy industry and the professions are all in favour, and I have a great deal of sympathy for their view. Indeed, I started out as an uncritical supporter of the IPC system. Of course all these bodies think that they are going to get their applications approved by the IPC, and it is not at all clear that that will necessarily be the case.
	The noble Baroness said that we have the promise of a two-year review, which is important, and there is also a promise, to which reference has not been made, that the Government will table amendments in your Lordships' House to allow Ministers to,
	"extend the grounds on which Ministers can intervene to remove decisions from the IPC and take decisions themselves".—[Official Report, Commons, 25/6/08; col. 349.]
	We shall have to wait to see the terms of these amendments.
	My central point is that the policy statements and the IPC are not two different processes but two stages in a single process. The more parliamentary credibility that the statements have in the way that I have described, the readier one is to accept the decisions of the IPC. Conversely, if the parliamentary processes are as relatively feeble as they are, then it becomes much more difficult to accept that the final decision should be taken by the IPC.
	For the moment I am reserving my position on this. There will have to be more improvements, particularly in the parliamentary handling of the policy statements and, unless we are promised stronger powers, I shall find it quite difficult—despite my predilection for it—to support the proposal for the commission. These two things hang together; accountability must be a key consideration.

Lord Reay: My Lords, I declare a land-owning interest in the south-west and, more particularly, in the north-west.
	The planning system we have in this country, deriving as it does from the Town and Country Planning Act 1947, is one of the great lasting achievements of the post-war Labour Government. We can all have our criticisms of it—for my part I deplore that it has not produced higher aesthetic standards of architecture and, of course, I am from time to time astonished by what other people have been allowed to get away with in their building—but, on the whole, the system can be said to have worked. There is public confidence in it and there is public confidence in, or at least public acceptance of, the appeals system and the planning inspectorate, which is seen to be a disinterested and professional body. The system has certainly been responsible for the remarkable degree of preservation of our countryside. Its chief defect is that it is cumbersome and slow, but broadly that is the price of winning consent.
	Planning is the reconciliation of conflicting interests, and for that process time is required. Certainly there have been some notorious excesses but I would have preferred an attempt to be made to reduce the amount of time taken by inquiries under the existing system. I realise that the Bill makes some proposals in that regard and that further amendments will be put forward from this side, but the basic alternative to our present system would be one which removes or drastically reduces the scope for local opposition and permits Governments or their agents to impose solutions.
	I am extremely concerned that the creation of the Infrastructure Planning Commission may be a step too far in that direction. There are great risks in setting up an entirely new system outside the planning inspectorate to consider major planning applications. What will the commission be like? Will it be a collection of interest group representatives? What will be its political bias? Will it be a foregone conclusion which way a panel will decide once the identity of the commissioners or commissioner is known? We simply do not know what its culture will be like.
	Nor do I think it right that the quango should necessarily take the final decisions in place of Ministers. The only surviving accountability remaining before Parliament will be when the national policy statement is debated. Even then, as my noble friend Lord Jenkin of Roding pointed out, parliamentary approval is not required as the Bill stands. The only involvement of this House is where it adopts a resolution on the national policy statement and then the Government must respond to it. The provision for public involvement is far inferior to that which we have at present. In that regard, I agree with what the noble Baroness, Lady Hamwee, said. To introduce such a system risks losing the trust of the public, with unforeseeable consequences.
	I had sympathy with the leadership of my party when they stated unequivocally at Third Reading in another place that they would abolish the commission on coming to power. This is a matter on which what the Opposition say now is of great relevance. The Conservatives are extremely likely to come to power within the next two years. If the provision for the commission remains in the Bill, the Government will barely have time to establish it before the next election. Who will they get to serve on it if it faces almost immediate abolition? I realise that shadow spokesmen in this House may not feel that this is the occasion, or even the place, for that commitment to be confirmed; it is perhaps more important to establish first what the views of this House are on the IPC. Eventually, though, what the Conservative Opposition say on this subject is as important as what the Government say.
	At Second Reading in another place, the Secretary of State said that she expected 47 infrastructure projects a year to come before the commission, of which 30 might be principal and 15 ancillary, and the Minister repeated more or less the same figures today. However, it could be a great deal more than that, for there will be an incentive for promoters to scale up their projects in order to qualify for treatment by the commission rather than run the gauntlet of the planning inspector and a full public inquiry. It will be hoped by promoters, and maybe by the Government, that the commission will more or less rubber-stamp any proposal that accords with whatever government policy, as it is expressed at the time in a national policy statement, may say.
	That could certainly happen in the case of wind farm applications. The Government face just as big a quandary over their wind energy policy as they do over their nuclear policy. They have committed themselves to a truly massive increase in the amount of energy to be achieved from that source to bring it up to 20 per cent or more of our electricity by 2020, involving an increase from the present approximately 2,000 turbines to some 10,000 turbines. The difference between the two energy sources is that wind-generated electricity is some two and a half times as expensive as nuclear or coal-generated electricity, and no wind farms could or would ever have been built without receiving an enormous subsidy. Indirect subsidies given to wind farm operators through the renewables obligations are currently calculated to add £1 billion a year to consumers' electricity bills. The prospect of receiving those subsidies enables developers to offer almost irresistible sums to landowners and irresistible and highly divisive bribes to selective local interest groups.
	This is not the occasion to debate the economic or political case for wind energy, but the fact is that the policy is responsible for introducing industrial machinery, in the form of turbines and the links to the grid that they require, into conspicuous positions in beautiful, unspoilt scenery. For those reasons the policy is extremely unpopular, more or less wherever an attempt is made to introduce them. It is therefore not surprising that Ministers complain that some 200 wind farm applications are currently stuck in the planning system. The Government must be desperate to speed up the rate of installation of wind farms. Although they have not talked much about it, it would be only natural if they came to see the Infrastructure Planning Commission as a means of rescuing them from their dilemma.
	In conclusion, the Infrastructure Planning Commission provides a far less democratic system than what we have at present, and I am fearful of some of the uses to which it might be put. Despite yesterday's blast from the CBI, designed to intimidate them, if the Opposition decide to stick to their guns and ensure that the commission has a very brief life, I for one shall not be too unhappy.

Lord Goodhart: My Lords, I propose to speak only on the report of the Delegated Powers and Regulatory Reform Committee, which I chair. I have been authorised to do so by members of the committee. Our 12th report of the Session contains a number of recommendations relating to the Planning Bill, of a type which appears regularly in our reports. I will not comment on them. However, having heard the noble Lord, Lord Jenkin, speaking about the national policy statement, I must say that we did not and could not comment on the appropriate procedure for that because I do not think it is technically within the definition of legislation.
	I want to talk about paragraphs 21 to 25 of the report concerning Part 11, which deals with the community infrastructure levy. In doing so, I will make no comment on the merits of the CIL. There are two issues which arise. The first is the skeletal nature of Part 11, which leaves almost everything to regulations. The second is the fact that all regulations under Part 11 are to require approval by the House of Commons alone.
	One reason for setting up the Delegated Powers and Regulatory Reform Committee some 20 years ago was the development of the practice of presenting Bills to Parliament which contained a bare outline—a skeleton of the Government's intentions, leaving the flesh to be filled in by statutory instruments. The committee was set up to help ensure that this did not continue. Its decision to declare a Bill, or part of a Bill, skeletal and inappropriate is infrequent. There have been five occasions when we have done so in the past 10 years, the latest being the Compensation Bill in the 2005-06 Session. When we say that a Bill—or, as here, a free-standing part of a Bill—is skeletal, that should be taken seriously. The word "inappropriate", which we use, is, as my noble friend Lady Hamwee said, Lords-speak for something considerably stronger.
	Part 11 is a particularly bad example of this. It contains only two effective provisions. The first is the exhaustive list of potential charging authorities in Clause 199; the second is the ceiling on criminal sentences that can be imposed by regulations in Clause 204. Everything else is left to regulations. There is a list of these in paragraph 22 of the report. How can your Lordships' House properly consider the Bill if it does not know, for example, who is to pay the CIL, which is under Clause 200; what is development for purposes of the CIL—that is in regulations, again under Clause 200; how the CIL is to be calculated, which comes under Clause 201; what is the infrastructure for the purposes of the CIL, under Clause 202; and part, at least, of the procedure for the CIL, which is in Clause 205? In 11 years of membership of your Lordships' House, I cannot remember any provisions where such an important proposal has been introduced with so much left to secondary legislation.
	In its briefing, the CPRE pointed out that the CIL was not fully debated in the House of Commons—indeed, it was hardly debated at all. The RICS said in its briefing: that,
	"the broad nature of the enabling powers ... mean that Members of the House of Lords may not be in a position to know the full implications of what they are voting for in relation to the CIL".
	Fortunately, the Government have two and a half months before the Bill goes into Committee. I hope that they will use that interval to put flesh on to the skeleton and provide enough detail to satisfy your Lordships' House. If not, your Lordships' House will have to give serious consideration to removing Part 11 from the Bill. I would not regard simply the publication of the proposed regulations as adequate to meet this problem. That will remain open to be amended without any approval by your Lordships' House.
	The second issue is that all regulations are to be made by the affirmative procedure in the House of Commons only. That assumes that the whole of Part 11 is subject to the financial procedure and therefore to the House of Commons privilege.
	The CIL is not in any ordinary sense a tax. It is a charge, imposed under statutory powers, by the charging authority, which is not the Government except in those cases where the Secretary of State is the charging authority. It enables the charging authority to recover the costs of infrastructure construction, which is for the benefit of the developer or owner—no money passes through the Consolidated Fund. Paragraph 26 of the report lists a number of comparable charges where there is no financial privilege. I have spent some time in the past few days reading the relevant passages of Erskine May, which include, at page 901, the following:
	"The rules of financial procedure do not apply to the receipts of local authorities, when they form the subject of legislation, unless they are in the form of grants from the Consolidated Fund. Provisions in bills dealing with local loans do not require authorization by Ways and Means resolution; nor do bills empowering local authorities to levy charges, rates or taxes".
	I have to admit that that is somewhat close to the boundary, but in our view, as expressed in paragraph 26, it should not be a matter for the House of Commons alone to approve regulations under Part 11. Even if that is so in relation to some aspects of Part 11, many are not within the House of Commons privilege by any standards. It would therefore be appropriate, if your Lordships' House wished to do so, to amend Clause 207(2) to require regulations in Part 11 to be approved by both Houses.
	I hope that the Minister will be able to take these questions on board and that we will, when we come back in October, be able to consider these matters in the proper form and not as they are now.

Lord Mogg: My Lords, I am grateful to the noble Baroness, Lady Andrews, for her clear explanation of this complex, highly important Bill. I declare an interest as the chair of Ofgem, GB's energy regulator, although many of my remarks will be made on a personal basis.
	The present planning regime is probably the single greatest barrier to the radical changes that we need to deliver to secure an affordable and diverse energy mix. The noble Baroness, Lady Andrews, referred to the challenge of trebling the supply of electricity from renewable sources by 2015, replacing some 30 to 35 gigawatts of capacity. These are huge challenges from many different perspectives, but it is difficult to see how we will meet them and the targets that the Prime Minister and others have agreed.
	Although I am no expert on planning, I could answer the question of how well the regime performs with two words: too slowly. I have learnt a good deal about it already from many of your Lordships' contributions, but I want to ground the debate a little more in the challenges that we would face if we were in an energy debate.
	The dwindling of gas supplies from the North Sea makes gas storage particularly important for our security of supply in the future. The potential certainly exists; the markets are working. Proposals are in either the pre-planning or the planning process that would, if delivered without further delays, double our storage capacity in the early years of the next decade. However, there are problems.
	I wanted to avoid cataloguing those problems, but I shall follow my noble friend Lord Best by giving a few factual details. A planning application was made for a gas storage facility at Preesall in Lancashire that could have added 20 per cent to our current gas storage capacity. The application started in November 2003. By October 2007, after an appeal was rejected, it was still on its way. There are others. Canatxx wants to build an even larger storage facility in Fleetwood, Lancashire, but that has been blocked by a local planning authority, which will certainly delay it until 2012, if we assume that it continues.
	It is not only gas storage that is affected by the planning regime; for renewable generation, which the Government strongly support, the outlook is bleak. Wind farms such as Scout Moor and Fullabrook, although they may be small, are two to three years delayed. For conventional gas-fired generation it is the same picture. Staythorpe C in Nottinghamshire is suffering a two-year delay. The liquefied natural gas terminals that we need to bring in energy from around the world have also suffered the same difficulties on Canvey Island. The transmission electricity grid, which is crucial for Scotland to bring energy to the English consumer, has had similar problems, with the north Gateshead grid upgrade. But I have troubled your Lordships enough with those rather technical issues.
	The debate so far seems far removed from my concerns as an energy regulator about ensuring that in future we will have security of energy supply, about which I hear constantly from around this House. We cannot continue in this way. I have heard very few noble Lords objecting to the proposal to streamline or accelerate the planning processes in England and Wales. To that extent, the Bill is welcomed. However, the Bill itself is not enough because, unlike the Bill, energy does not confine itself to a couple of countries. Equally, the supply of renewable energy from Scotland is of major importance to the Scots and to the English consumers. We need a change of regime in Scotland. Although this does not relate to the Bill before us, it is essential that the Government have discussions with the Scottish Executive—if they have not already had them—to encourage an acceleration of their processes. There are no borders for energy.
	I should draw noble Lords' attention to a further concern. The billions that we shall need to develop the infrastructure—the wind farms, the renewable energy arrangements and the new gas-fired and other arrangements—will need to involve private sector investment. It is no news to noble Lords that investors hate uncertainty, incoherence and delay.
	Concerns have been expressed in terms of the acronym BANANA. It is a particularly useful acronym, which I should like to pass on; it stands for "build absolutely nothing anywhere near anything". It is unfair to dismiss the legitimacy of such concerns about the process, but, with the Infrastructure Planning Commission, perhaps the acronym should be changed. The Government's proposals should not have the response that Mrs Lait gave in the other place. She said that she will,
	"review the IPC out of existence".—[Official Report, Commons, 25/6/08; col. 355.]
	The IPC should bring objectivity, expertise and judgment, and I support its creation, principally to accelerate the process that will deliver satisfactory support.
	The remainder of my comments would have concentrated on how legitimacy of control at the political level is to be achieved and on the process—I very much endorse the comments of the noble Lord, Lord Jenkin—particularly with regard to national policy statements. Those seem to me fundamental. They give an opportunity for Parliament to review in detail the start of a process—and perhaps to agree with it—which will guide and control the final decision by the IPC. I also believe, from what I have read, that your Lordships can pursue and develop some of the improvements in the consultation processes that have been built into the Bill. It is clear that speed tends to restrict the ability to comment, but it is speed and my concern for energy that allows me to support the Bill and, in particular, to recognise that, if we are wrong, the review in a couple of years will be helpful.

Lord Haskel: My Lords, I thank the Minister for explaining the Bill and for her careful briefings, as well as for all the other briefings that have enabled us to understand it. I support the Bill because it does what many noble Lords have already said it does: it provides a much more efficient way of dealing with large planning applications. If we are to remain an open economy in a globalised world, we will have to become more efficient in many ways to compete in the race for the top. The alternative is protectionism and who wants that? One of the major achievements of the Government is their constant rejection of protectionism. Nobody doubts that there will have to be a lot of infrastructure developments if we are to compete in the race—the noble Lord, Lord Mogg, just told us all about the energy sector.
	I agree with the Minister that, if we separate the argument over need from arguments over planning and if we unify consent, the whole process becomes more efficient and more certain. More certainty helps business and local government to plan; it encourages investment and reduces planning blight. The principle is right, as is the requirement of democratic accountability to the public. The question is how well the process of involving people in communities is managed. It has to be managed well because, as the noble Baroness, Lady Hamwee, said, planning is a highly political issue. It is also very emotional. People demonstrate, march and get upset over planning. The process has to be right.
	The means of reaching a decision is particularly important. It cannot be a tick-box process; a decision must be reached only after careful consideration and full consultation. With the creation of the Infrastructure Planning Commission, the Bill proposes a major change to the means of reaching those decisions—a change from an adversarial to an inquisitorial process. Like my noble and learned friend Lord Boyd, I think that the inquisitorial way is fairer, cheaper and easier for communities to participate in.
	Those doing the inquiries will need different skills. Instead of adversarial skills, they will need the skill of getting people to consult and listen to views adequately. A sure way of encouraging participation by local communities is to see that their participation is properly funded. Will there be any additional money for planning aid? They will need more money to pay for experts' assistance, as there will be a lot of new technologies for them to understand and deal with.
	The noble Lord, Lord Mogg, spoke of gas storage, which will have to be expanded enormously. Carbon sinks will become a planning issue, but we know little about that. Another area where the Government will need specialist assistance will be in sorting out the conflicting claims—some noble Lords listed them—of economic need and sustainability. The noble Lord, Lord Dixon-Smith, spoke about this.
	The conflict between the environment and natural resources and the need for infrastructure will be settled in the policy document in Part 2 of the Bill. We cannot be too dogmatic about it. There is no settled view about the metrics. Neither do we know what new technologies will do for us. The Government will have to be very transparent about this. The national policy statement in Part 2 will involve forecasts, but in many sectors of our infrastructure forecasts change. For example, if we ever find a way of taxing aviation fuel, the effect on the forecast for aviation will be enormous. These policy statements will therefore have to be kept under review and carefully updated.
	It will be helpful if, in managing the policy statements, the Minister gets the collaboration of the campaigning NGOs, partly because many parliamentarians agree with them but also because contact with the NGOs provides intelligence. As things change, Governments learn what the new issues are and can deal with them without confrontation.
	The Government have promised a review after two years. It is right that there should be a formal review because there are bound to be flaws or mistakes in a new process such as this. Is two years sufficient time for these flaws to become apparent and for the Infrastructure Planning Commission to learn how to rectify them? During the first two years, there will be few applications from which to learn.
	The Bill is right in principle and the principles form a good basis for social and economic agreement in an open, liberal economy. Giving the public greater rights to participate in decisions regarding major infrastructure makes for a fairer society. However, we will have to carefully scrutinise how this is managed. The other place has introduced some useful amendments to the management of this process. There may well be more to come from your Lordships' House.

Baroness Gardner of Parkes: My Lords, my reason for speaking today is that I consider this new Planning Bill to be of great importance and yet of some cause for concern. I have not myself been actively involved as a planning decision-maker since my GLC days, but I have followed many development applications through a local amenity society of which I am a committee member—and also through finding myself in London in the unfortunate position of being in the centre of a building site for more than the past seven years, with all the dust and dirt and inconvenience that necessarily accompanies such work.
	In your Lordships' House, at the time when such matters of major infrastructure were dealt with as Private Bills, I took the London Transport Bills through the House. It was a long, slow process, with objectors' hearings taking an inordinate amount of time before consideration reached the Chamber at all. The then-chairman of London Transport told me that he had built the whole of the Hong Kong Mass Transit Railway, from first thought to completion, in less time than it took to get the planning permission for the Jubilee line extension. I therefore welcome the idea of a much more speedy process for the "nationally significant infrastructure projects". I am less sure about the Infrastructure Planning Commission, as I prefer to see a democratically accountable body dealing with these matters.
	Clause 91 deals with "open-floor hearings" and I see that the examining authority must arrange this if at least one interested party informs the authority within the time limit. Are these open-floor hearings to be available for all or only for some applications? Clause 92(8) has what I consider to be helpful limitations, particularly subsections 8(a)—"irrelevant or frivolous"—and 8(c), whereby representations cannot be made if they,
	"repeat other representations already made".
	A small, vociferous group can extend hearing times almost interminably by sheer repetition. Many speakers have mentioned the example of Heathrow. I welcome Clause 104, which creates a duty to make a decision within three months on an application for development consent.
	Part 8—"Enforcement"—is very important in any planning situation. The late Lady Castle added her name to mine on an amendment on enforcement to an earlier Planning Bill when she first became a Member of this House. We were not successful. I am pleased to see that Clause 153 makes it an offence to carry out development without consent, and Clause 162 gives the local authority the right to demand reinstatement or remedy the breach of unauthorised development.
	I have long thought that it is a vicious system where someone carries out a development without permission, much to the detriment of neighbours, and then applies for, and is granted, retrospective permission because the local authority feels that so much money has been spent that it would be unfair to refuse retrospective development permission, although it would normally not have granted permission at all. Lady Castle told the House that she had exactly that experience.
	Part 9 is headed,
	"Changes to Existing Planning Regimes".
	Clause 167 is important in that it covers Section 106 agreements whereby local planning authorities are able to negotiate a better deal for an area or for other local residents or prospective residents at the time of consideration of a planning application. Usually permission is granted,
	"subject to a Section 106 agreement",
	and the final details are agreed between the planning authority and the developer. Through this means an element of social housing is often agreed, and usually a condition established, that this must be an early part of such a development to be constructed before the more expensive housing for sale.
	Where I am in London our footpaths are just being rebuilt and the road resurfaced under a Section 106 agreement. This goes some small way towards compensating locals for the seven plus years of development, dirt, noise and traffic that we have all had to endure.
	I note that London Councils is concerned about the community infrastructure levy regulations and the effect that CIL will have on the ability of local authorities to use Section 106 agreements should they opt not to adopt the discretionary CIL. London Councils states:
	"Local authorities should be able to choose whether, and how, to introduce CIL. In practice this means that the introduction of CIL should be discretionary and should not prevent local authorities from using S106 agreements. It is not yet clear how CIL and S106 agreements will work alongside each other and a concern that boroughs have is that proposals would reduce the funding available for affordable housing and other elements to be negotiated via S106. This is of particular concern to boroughs if a proportion of the CIL raised were to be a regional contribution ... the introduction of CIL should not replace other sources of funding. CIL will only generate funding towards the cost of the infrastructure needs generated by new developments and the government needs to make it clear how the upgrading of infrastructure to meet existing demands is to be funded".
	The Local Government Association states that there was no time to debate CIL as a key aspect of the Bill during the final Commons stages. More debate is essential as in the past the introduction of levies and incentives has dramatically influenced what has been built and the impact, sometimes quite undesirable, has been far greater than expected. Local government is best placed to understand local needs. I support the LGA view that local flexibility must be maintained. Local authorities can work with local communities and developers to determine local needs which are very diverse and vary from community to community.
	My hope is that this House will deal with the remaining points in the Bill that require amendment.

Lord Burnett: My Lords, I draw the House's attention to my declaration of interests. I and my law firm are involved in planning matters up and down the country. I am also a landowner in Devon.
	It is worth making one or two general observations on planning at the outset. These observations link into some of the changes proposed in the Bill. As with much in life, the public's attitude towards and perception of planning are sometimes inconsistent. At its simplest, the public recognise the importance of bringing forward housing development or a new power station. They know that people need housing, heat and light. Nevertheless, sometimes there is a reluctance to achieve those laudable objectives by conceding and agreeing the means to achieve them; in other words, designating and granting planning permission for housing development or a power station.
	In my years of involvement in planning I have frequently heard conflicting views being debated at public inquiries. They function well on the whole and the Planning Inspectorates rightly goes to great lengths to ensure that communities and community groups have their say. The inspectorate is independent, its personnel are experts and it invariably acts swiftly, objectively and consistently.
	I would add a note of caution in respect of the proposed community infrastructure levy. There is a desire by some councils to seek to extract unreasonably high planning gain obligations and payments under the existing Section 106 provisions. I am aware that a number of major schemes are stalled because they are completely unaffordable in the light of the planning gain demands. It would be interesting to hear in due course from the Minister what advice would be given in respect of these matters, as they impinge on the community levy.
	Noble Lords have welcomed other important aspects of the Bill, particularly the proposals to draw up national policy statements for major infrastructure projects. I was a member of the Procedure Select Committee in the other place and dealt with the previous government proposal in respect of major infrastructure projects, which was flawed and was dropped. There is a lot of good sense in the propose system of national policy statements with site identification. Nevertheless, these statements should have full parliamentary scrutiny, including through Select Committees, and they should be amendable on the Floors of both Houses.
	Often and, in my opinion, very unfairly, the length of time taken by the Terminal 5 inquiry is cited as one of the reasons for the necessity for change. The Terminal 5 inquiry was conducted by a most distinguished planning barrister, Mr Roy Vandermeer QC. I put on record that I know, admire and have worked with him. He gave up an extremely successful career to give public service and his decision on a most complex matter was hardly challenged. He faced an inquiry with a completely out-of-date local plan which had to be constructed during the inquiry, and with no government traffic study, which also had to be worked out and calculated during the inquiry. Such matters take a considerable time.
	I would hope that national policy statements will be properly scrutinised by both Houses. If this work is done properly, it will not be necessary for the vast additional work that often bedevils these major public inquiries when national and local government have, for one reason or another, not provided the decision makers with the appropriate information. I hope that they will be forced to do so by the provisions of the Bill. It is the laggardliness of national government and, sometimes, local government that causes the problem.
	The current public inquiry system, adapted with those planning statements, will work well and experts can be drawn into the inspectorate to conduct these major infrastructure project inquiries. I am not convinced that the argument for an Infrastructure Planning Commission has been made. The existing system, with the appropriate work having been carried out, with national policy statements adopted through Parliament, is perfectly capable of delivering a swift, considered and democratic conclusion with considerable public participation. Inquiries are inevitably held locally—that is very important—which gives local individuals and organisations every opportunity to speak, to cross-examine and to have their say. Planning has to be consistent, but it has to be democratically accountable.
	Ministers should and must take the final decision with the statements and the inspectors' reports in front of them. As that great judge, Lord Nolan, said in the Alconbury case in 2001,
	"To substitute for the Secretary of State an independent and impartial body with no central electoral accountability would not only be a recipe for chaos: it would be profoundly undemocratic".
	Ministers should not be seeking to pass the buck. The buck should stop with them.

Baroness Whitaker: My Lords, this is a far-reaching and radical Bill, a worthy successor to the great Town and Country Planning Act 1947. That Act reconciled industrial reconstruction after the Blitz with keeping Britain a pleasant place to live. This Bill will reconcile our economic development and its infrastructure requirements with our environmental responsibilities, as well as improve the planning system for all development. I welcome the clarity, speed and fairness of the process it proposes. When I was in the Nuclear Installations Inspectorate, I took part in interminable planning processes for new power stations.
	In her upbeat introduction, my noble friend acknowledged the influence of the Barker Review of Land Use Planning, seen in the Infrastructure Planning Commission and the new way of working.
	But Kate Barker also said, in recommendation 24:
	"Decision-makers should give higher priority to ensuring that new development has high design standards".
	She added that it was commonly accepted that good design brought benefit in terms of the functionality of development and that the costs of poor design were high. There is, as yet, no explicit obligation on Ministers to pay the same kind of attention to design as to sustainability. But we could expand Clause 10(2) to impose one. Of course, the planning policy statements already in existence contain plenty of powerful guidance on design. But is guidance enough?
	How will this excellent guidance be implemented by local authorities, apart from the infrastructure commission, and who will be doing the implementing? Developers have persuasive arguments of many kinds. And after most of the developers have gained permission and have built, they will move on. But the people in the planning authorities who make the decisions will continue to live with their responsibility for the area and the development within it. Their interests are already different.
	The planners will need several kinds of skill. They will need to be able to assess what the developers' arguments are worth in terms of enduring value to the locality. They will need to know how to muster comprehensive local opinion. Above all, they will need to be able to identify what is a good design, functional, sustainable and attractive to the people who will use it. And, finally, if the developer appeals against their decision, they will need to be confident that the appeals system has the capacity to back decisions which are based on good design.
	The problem is that while the Government's design guidance is very good, we do not have that assured reservoir of design capacity everywhere in the deciding part of the planning equation to put it into practice. A survey early this month by the Audit Commission headlined the current shortage of qualified planning staff, which could lead to a national shortfall of 46 per cent in five years. Another earlier one by the Local Government Association identified design as the professional skill most lacking, with 52 per cent of planning authorities saying that they themselves were deficient in design skills. And the Institution of Highways and Transportation found that 85 per cent of its members had received no formal urban design training. Nor had a majority of transport planners, regeneration and traffic management officers. Perhaps that is why we have so many towns and cities which are fit for the motor car but not so good for people, for families and for children. How can we arrive at the "architect-planner" who has such a benign influence in the developments of many of our European counterparts, such as Germany, Holland, or Sweden? Should we not have a common curriculum for planning skills, with design and negotiating skills as core components? And should we not be encouraging more young people to take up planning as a career?
	Nor do we have a system of monitoring the quality of planning authority decisions in respect of design. It would not be difficult to see how they measured up to CABE's Building for Life criteria, the nationally accepted standard for design.
	So, I ask my noble friend, what can be done to spread the culture of good design, in the big infrastructure projects as in the places where people are going to live? How can the community infrastructure levy contribute to this purpose? I hope open and green space is included within the term "community infrastructure". Perhaps the regulations referred to at Clause 202(4) can make this explicit. And I hope that the community infrastructure levy and Section 106 of the current legislation are not intended to override PPS1 and PPS3.
	On the infrastructure commission itself, and its council, can we be assured that there will be expertise in design quality, sustainable development and inclusion and community involvement? All are essential to good design. What will the design remit of the new institutions be, in their acceptance of applications, in their appointment of panel members, in the single commissioner procedure, or in the content of development consent orders?
	How can the system of design review panels and design champions be expanded? If a culture of better design cannot be achieved as the Bill takes root, we shall be missing an opportunity which will not come again for many decades. We have now great talent in this country. But the good design we can produce is not the norm. We could reward developers who demonstrate compliance with recognised design criteria by fast-tracking them through the planning process. We could think harder about how to encourage innovation.
	The Bill, in the words of my right honourable friend Hazel Blears, reaffirms,
	"the central role of planning in shaping all our communities",
	and gives it some of the power to do so better. We need to do better because planning influences profoundly the most powerful manifestation of our culture—the way we go about our lives.

Lord Cameron of Dillington: My Lords, I should first declare an interest as a farmer, landowner, businessman, and chair of the Charities' Property Association. Secondly, I am supportive of the main purposes of the Bill. It does, however, still have some weaknesses.
	The desire to speed up major infrastructure projects can only be beneficial. Everyone will have their own favourite example of poor past performances, but the one which has always struck me is the Channel Tunnel rail link because we have a direct comparison with France. The tunnel was opened for service in 1994 and France had its high-speed link ready a few months later. We, on the other hand, took a further 13 years to open ours. The world now moves incredibly fast and apart from keeping up commercially we also have to provide the solutions to problems faster. If we have to wait 13 years or more to deal with every aspect of climate change, we will always be one step behind and the world will overheat before we have even got going. However, we must ensure that, wherever possible, we balance our desire to get things done with the right checks so that the interests of communities and individuals are not trampled on.
	The proposed national policy statements are the crux. As the noble Lord, Lord Jenkin, said, they are more important than the IPC. We are talking about national projects, so it is right that Parliament should decide on the overall policy, but this is a new concept and these are going to be hugely influential statements. Whatever the processes gone through for previous documents—PPGs and even White Papers—they were not examined by Parliament or the public in the knowledge that they were going to rule the decisions of the IPC on a range of essentially bad-neighbour projects. Thus, all NPSs must start from scratch after the Bill is passed. It would be underhand for it to be otherwise.
	Similarly, NPSs must be approved and confirmed by both Houses of Parliament. They are important documents that will affect so many lives for good and bad. Thus, any NPS must not only be democratic, but must be seen to be democratic; only full parliamentary scrutiny will do. Apart from anything else, it would seem a waste if the expertise available in this House was not used effectively. I suggest that a national policy statement scrutiny committee is set up in this House with powers to co-opt the necessary expertise as and when required.
	I would also prefer that these NPS are tested for sustainability, and all that that involves, by the Sustainable Development Commission rather than the Minister, as currently proposed. In all of this, noble Lords will detect an underlying concern that these very important documents, which will affect so many lives and will override the local democratic planning process, must be seen to be consistently tested by outside bodies. It is important that they cannot be driven by an Executive with an agenda unchecked by democratic processes. After the scant regard to proper scrutiny that this Bill suffered in the other place, there is a degree of mistrust about all this, and so we need to be particularly careful about the procedures involved here.
	Concerning the IPC and its process, there are just two issues I would like to touch on. The first concerns the pre-application consultation process. Much is made of this, but I am not sure that consultation carried out by an applicant and then reported on by that same applicant is worth very much. It could so easily be a sham, and if it is not a sham would the public have confidence in it? "They would say that anyway" is the phrase that comes to mind.
	What incentive is there to resolve the issues? Clause 48 is not yet strong enough. Applicants should have to spell out not only all the replies they got, but also what they did in every case to resolve the issues, what means of mediation were utilised or ultimately why they were unable to resolve the problem. It would be better still if the consultation was carried out by an independent, publicly accountable body practised in open and transparent processes, but we will come to that in Committee.
	The second issue concerning the IPC is whether the ultimate decision on a project should be taken by the IPC or a Minister. Many who raise the subject favour a Minister, but I am not so sure. At least the IPC decision-making process will be done in public, with all representations, written or oral, open to public scrutiny and comment—at least, we are assured they will be. I am not sure that that applies to ministerial decisions. They have a reputation for being taken behind closed doors with the suspicion that the Minister might have been got at, that he had already made up his mind, or even that he might be looking for a big project to implement on his watch in order to boost his own standing. There is certainly a strong suspicion that decisions on these bad-neighbour projects are strongly politically motivated and depend on how the Government of the day are viewed in a particular constituency. For instance, is a bad neighbour project more or less likely to end up in a marginal constituency? Whatever the rights or wrongs of these suspicions, I do not believe that the planning system should be seen to be politically motivated. At least the IPC decisions will be taken firmly on the basis of the soon to be fully democratically scrutinised national policy statements. This underlines my previous point about these statements actually being properly scrutinised and voted on in both Houses.
	I know that the beginning and end of the Bill has attracted most attention, and tonight is no exception, but it is probably the middle bits that will affect, and perhaps even damage, the existing planning system the most. To be brief: I have no objection to more decisions being taken by officers, but local member review boards are not a fair way of dealing with appeals. Members from the same council will be prejudiced to support their officers or their fellow council members. It is always hard for individuals and groups to admit that they were wrong. The real reason for these clauses appears to be to take pressure off the Planning Inspectorate, rather than to get the right results, and I do not believe that that is the proper way to take our planning system forward.
	In any case, the IPC is already taking pressure off the planning inspectorate, so I do not think that that change is either good or necessary. Also in Part 9, I do not believe that RDAs are the right bodies to take over or even to lead the strategic regional planning system. They are unelected; they are focused on the economy, rather than the social or environmental aspects of the area; furthermore, from conversations that I have had, I am not sure that they want that dubious honour. That one needs to be banged on the head sooner rather than later.
	Turning to the community infrastructure levy, many answers are yet to be provided. Cynics might say that it was guillotined in the other place because the Government do not have any answers yet. My great worry here is that the £500 million per annum that the levy is supposed to raise will thus not be available to put into housing and commercial development. I am, of course, especially concerned with affordable rural housing and rural commercial development, which is so desperately needed in some areas and, at the same time, so marginal in return on investment. I hope that the levy will not push such investment over the edge.
	Having said that, here are a few—I stress, only a few—of the questions that have been going through my mind. What obligation is there on the local authority to spend the money on infrastructure; and is there a time limit by which it has to be spent? What if the match funding does not appear from the LEA, the health trust or the Environment Agency? Is the money returned? Will the levy apply to developments built under permitted development rights—for example, a farm building which, in 99 per cent of cases puts no extra strain on the infrastructure? Will it apply if the development is required by new regulations or law—again, taking a farming example, a larger slurry store because the farmer finds himself in a nitrate-vulnerable zone? Will the levy apply in cases of replacement buildings—is renewal and regeneration now to be taxed?
	If the development itself is contributing to the infrastructure—a key worker's house, a community building or a development for charitable purposes—does it still get charged? As others have said, all charities should be exempt from the levy in the same way that they are exempt from other taxes. I should say now that I shall be tabling an amendment to that effect in Committee.
	Another question: how will the levy work in tandem with the Section 106 agreements to ensure adequate provision of affordable housing? Another cynical question is: what is to stop the Treasury deducting money from the rate support grant elsewhere in the local authority's budget in a sly form of mission creep?
	Those are just some of my questions; I assure all your Lordships that my first draft had many more. I do not see how we can properly debate the levy until we get the answers. I hope that we will have some before we reach Committee in the autumn and that we can put the answers into the Bill. I look forward to getting to grips with the detail of this otherwise most necessary Bill.

Lord Lucas: My Lords, I am happy to follow that very wise speech—perhaps I say that because I agree with so much of it. I especially agree with the noble Lord, Lord Cameron of Dillington, about the attractions of the first part of the Bill and the approach being adopted by the Government. The national policy statements will put the political aspects of major infrastructure development where they belong, which is up front, in Parliament, to be debated and dealt with properly before we get into any of the more complicated and local procedures.
	I will come back to how I think that Parliament will deal with them afterwards, because that is where I want to get into the detail. It is high time that we had a structure to draw out the politics and for Parliament to face up to the decisions that it is making about what should happen out in the country rather than have this endless fudge and people having to go through endless hoops merely to achieve what Parliament and the Government have already decided, to our immense economic disadvantage. I welcome that.
	I also welcome the proposals for developer consultation. I am involved with, although not in any way paid by, a company that specialises in that area. A tremendously helpful development in the past decade or so has been that developers are becoming much more open with communities about what they want to do and much more open to their suggestions as to how what they want to do can be improved from a local point of view. This does not put a chop on the project; the IPC will not say, "Right, this has been done and therefore we can take the developers' views on what the consultation has achieved as part of our input". This is about waking up, informing and involving local communities so that, when we get to the planning inquiry or IPC stage, the process runs much more efficiently.
	In Committee, I will look with interest at how the Government justify the IPC. Why, given the other two parts of the structure, do we need to move to an IPC rather than use the existing planning structures, or a variant on them, with which we are all familiar? Given that we have taken so much of the politics out of the process, what does the IPC as a structure add that could not have been added by amending the planning inquiry regulations? Is there really no function for a Minister at the end of the process? It is a political comfort, as the Liberals and others have said, to know at the end of the day that a Minister, not an official, is looking at this.
	The Government are right to say that ministerial involvement has become much more formal. I remember the decisions that my right honourable friend John Gummer took in his tenure as Environment Minister and the personal steer that he could give to development. Such personal input has got rather swamped by the increase in judicial review and Ministers' law-sensitiveness and has gone, but a Minister might well have a role in looking at the result and saying that, in their opinion, the whole process had been gone through properly and the conclusion was valid, without having to revisit all the arguments that went into reaching it. I should like to explore in Committee whether we can bring back a Minister in that context.
	I like most of all the proposals for discussing national policy statements in Parliament. The Bill and what has been said about how it will work focus very much on the Commons. As I understand it, the process will be that after the publication of an NPS, the relevant Select Committees in the Commons will get together, decide who will hold an inquiry and run a 12-week inquiry that takes evidence from witnesses. It will then have a period to digest the evidence before it produces a report. The proposal at the moment is that, when that report is produced, the House of Lords will decide whether it wants to debate it. That will not do.
	We have a lot to contribute in these areas. In areas such as nuclear power stations and airports, in which a lot of technicality is involved, we have expertise and experience to bring to the process that are not obviously present in the Commons. When it comes particularly to national policy statements, for example on wind turbines, that are not location-specific but leave open the whole question of where these things should be located, and in which the process through which the IPC has to go is specified by a series of restrictions—a series of guidelines which the IPC will have to follow—there would be a great function for your Lordships' House in considering whether those guidelines are practical and sufficient and will produce something that actually works in practice, to take the politics out of it, and whether they have been properly drawn. We should not get involved in deciding whether something should go in a particular place. Place is very much a matter for the Commons; practicality and principle are things that we should consider.
	We have a reasonable procedure in this House for negotiating with the Commons and for making sure that where we hold parallel inquiries we do not do too much of the same thing. I do not think that the Lords should be afraid of saying that it wants a role from the beginning whereby, as soon as a national policy statement is published, it can consider whether it wishes to hold its own inquiry on the same timescale and basis as the Commons. Because we are sensible people and do not like wasting public money, I am sure that we will not do it when we have nothing to add. I hope that having to wait on the Commons, its opinions and its limitations, will not appeal to many people in this House.
	The process after that is interesting. It will require us to be quite innovative in our structures. The proposal is that there will be a Motion that can be amended, which this House will discuss. We will have a process whereby people may want put down quite a lot of amendments to a Motion to say that they would prefer the Government to do this or that. We will need almost a Committee stage structure to deal with a Motion on the Floor of the House. I do not know how the Commons propose to deal with that, but it will pose some challenges for us and I hope that will have a chance to discuss that in Committee. Again, I do not see any reason why we should not be able to innovate in that way and make sure that we can discuss those things properly.
	Whatever Motion we pass will go to the Government. They will react to it and will produce an answer. That should be followed by further debate if we wish, at which point Parliament will have had its say and the national policy statement will be there. That process will expose the whole planning structure for these major infrastructure projects to real democratic accountability at the beginning, which is an enormous advance.
	As the noble Lord, Lord Goodhart, has said, we should use the CIL for dealing with the lack of detail. We really cannot consider it as it is at the moment. There are so many ways in which we need to understand how it will work and how we can pin down its interaction with other local structures. I very much enjoyed the questions asked by the noble Lord, Lord Cameron, and I will not add to them. Where you need infrastructure to go with a particular development, which can be secured under Section 106 at the moment, it is not clear how that can be secured under the CIL arrangements. We have a lot of detailed thinking to do and we need detail in the Bill to be able to do it.

Lord Judd: My Lords, I always find that the reflections of the noble Lord, Lord Lucas, bring real quality to important deliberations of the sort in which we are engaged tonight. I am glad to declare an interest as president of the Friends of the Lake District, which represents CPRE in Cumbria, and as a vice-president of the Campaign for National Parks. There is a great deal to welcome in this Bill. A more strategic approach to planning, rather than a piecemeal tactical system with all its dangers of nimbyism, could prove immensely valuable. I therefore make my observations in a positive context.
	We all want the United Kingdom to be a decent, civilised, thriving, sustainable and, crucially important, qualitatively good place to live and to leave to our grandchildren. A strong, sustainable economy is essential to underpin it, but this is obviously complicated by the new realities of climate change and the challenges surrounding energy and power. That is well illustrated as we move towards a new generation of nuclear energy by the imperative that we should do so only having resolved what we do with nuclear waste. To fail convincingly to have resolved this first could prove selfish and irresponsible towards future generations.
	To be a good place to live, our culture, history and heritage, together with the wonderful natural inheritance of the aesthetic and scenic glories of the countryside, must at all costs be preserved and enhanced. They are essential to our psychological and physical well-being as a nation. They are our lungs and are indispensable to our spiritual fulfilment. As we gear up economically for survival, we must learn from the Industrial Revolution. With hindsight we can all see that the ruthless rape of some of our finest and loveliest assets was not necessary. The revolution could have been done better. It would, literally, be criminal to make the same mistake again. I assure my noble friend that if the Government's purposes for this Bill can be demonstrated to be 100 per cent behind meeting these priorities, they will generate strong and articulate support across a wide spectrum of caring people. From that standpoint, it is essential to be convinced about the issues I am about to list, some of which have already been referred to in the debate.
	Exactly how will the Bill guarantee that the vital national importance of aesthetic considerations—beauty, wildlife habitats and the wider well-being created by space, regeneration and recreation of the community—will not only just be protected but enhanced? Where will real accountability lie? How will the Bill safeguard a commitment to the historic environment and ensure that the essential relevant inputs of scholarship and expertise are available to the Infrastructure Planning Commission? How will commitments to social justice, equity, and environmental quality and culture that have been so much at the heart of the town and country planning system since 1947 be sustained and underwritten? How will we ensure that all development is genuinely sustainable and that it has not just been put through a "green wash" exercise? How will the legitimate anxieties about the dangers inherent in combining the investigative, advisory and decision-making powers of the IPC be met? How will the IPC itself be made effectively accountable? Will national policy statements carry more weight than the existing planning policy statements, and if so, why?
	We must remember that the present system deals with sustainable development, housing, rural areas and biodiversity, ensuring that environmental issues are treated on an equal footing with economic considerations. Will that continue to be meaningfully the case in the future; and if not, why not? Is there an intention to regard, for example, the aviation White Paper as in effect a national policy statement? This would allow both for the consideration of alternatives and for the strategic assessment regulations fully to be taken into account. If an NPS is to designate sites, will civil rights remain inviolate—the right to be heard and the right to cross-examine? Do not issues like these make a full planning inquiry process still essential?
	Currently, regional planning powers are held by regional assemblies. As we have just heard, it is now being proposed to transfer them to the regional development agencies. How does this improve democratic accountability? Arguably, Clause 171 will have a greater impact on day-to-day planning than any other aspect of the Bill, but could not this change in effect weight planning towards economic development without giving proper consideration to the potentially high cost of other social priorities? How can this be avoided? If ever there was a sphere of government in which the strength of the outcomes is dependent upon a broadly based consensus on the objectives and the methods in place to achieve them, planning is a prime example. I hope, therefore, that my noble friend, whose concern for the qualitative dimensions of society I know personally to be second to none, will be able to reassure us on these matters during the proceedings on the Bill.

Lord Livsey of Talgarth: My Lords, I thank the Minister for her courtesy in opening this Second Reading debate on the Planning Bill. It concentrates on large infrastructure projects and is an England and Wales Bill. I want to point that out because I am a spokesperson on Welsh affairs.
	Obviously, there is a need to expedite some projects within defined time limits. Projects such as TGV-type rail electrification schemes are likely to be more acceptable than nuclear power stations—that stands out by a mile—but huge questions of accountability arise from the Bill, especially in relation to areas directly affected by infrastructure projects.
	I have carried out research on the Infrastructure Planning Commission. First, I was told that there would be eight commissioners and only one from Wales; then I discovered that, on the planning consideration of infrastructure projects, there would be between three and five and that they would be accountable to Ministers and Parliament and report to the Secretary of State. However, it is indicated on page 31 of the Planning Bill impact assessment that there will be 35 IPC commissioners and 75 people in the secretariat. The sums are given, and it will cost quite a bit of money. The IPC will be a quango and will need democratic control big time.
	On page 7 of the Bill, Part 3 indicates the fields of nationally significant infrastructure projects in which it will operate. These include energy, transport, water, waste water and waste. It then gives categories of significant infrastructures such as electricity generation, electric lines, liquid natural gas, airports, harbours, railways, reservoirs and hazardous waste.
	Let us consider the national planning statements from a Welsh perspective. The main point in a briefing by the Welsh Assembly Government is that the Planning Bill is devolution-neutral, but there is, first, a Wales spatial plan, a national plan for Wales, to which local planning authorities—22 unitary authorities—and three national parks must have regard; secondly, there are local development plans, LDPs, for single-tier local government; and, thirdly, there are development plans for unitary authorities. These are all in place. The LDPs, for example, contain a community involvement scheme and timetable for its preparation, adoption and consultation.
	There is a statement in the Welsh Assembly Government briefing—I do not have time to read it out—which spells out the process for reform of these matters over a number of years. The question is whether, to misuse the title, the Infrastructure Planning "Comintern" is going to run roughshod over this process. I do not know—it may well do so—but the Welsh Assembly will surely need transition time to change many of the principles of planning that it has worked out over the past 10 years. It will take some time. In the House of Commons, an amendment was tabled to give the Welsh Assembly transition time. It was disposed of in two minutes.
	The Welsh Assembly Government and the National Assembly policy is to maximise electricity production from renewable resources. What will happen in Wales if the Infrastructure Planning Commission wants to impose new reservoirs—a big political issue in Wales—nuclear power stations, a Severn barrage, massive new on-land wind farm sites, which are already in the pipeline, when Wales could be self-sufficient—it nearly is in electricity already—from renewable sources? It would be an interesting situation if nuclear power and new reservoirs were opposed in the Assembly because the Bill prohibits energy power electricity units of more than 50 megawatts being constructed in Wales without IPC approval. Is this a recipe for conflict? It may be.
	I declare an interest as a trustee of the CPRW, the Campaign for the Protection of Rural Wales. We in that organisation want to ensure a democratic and fair process that delivers sustainable development. The Planning Bill fails to acknowledge the speed of its processes on what it professes to espouse: environmental protection, climate change and quality of life. It tends to be short-termist and focused on immediate economic considerations and thus may threaten to undermine commitments for sustainable development. How can the Government justify that? The transfer of decision-making powers to the IPC from directly elected representatives in the devolved Assembly and the local authorities is a dangerous principle. Perhaps the Minister would care to comment on that.
	If I had more time, I could comment on the impact of the Planning Bill on agriculture and land, but much has been said already on community infrastructure levies. I know that the farming unions in particular are concerned about that. There is also no reference to the importance of good design on infrastructure projects in the Bill, and the RIBA is concerned.
	The conclusion that I come to is that the Bill threatens to undermine democratic accountability by, in some parts, overriding the power of the Secretary of State and the Welsh Assembly Government and their Ministers. The principle of expediting large, and few, infrastructure projects is a good one, but is the IPC the best vehicle to progress that objective? It is top-down and authoritarian, and that needs to be looked at in some detail. Will the Bill ensure sustainable development? Probably only in parts and without sufficient checks and balances. If we are to ensure accountability and environmental sustainability while achieving some constructive objectives, the Bill will have to be further amended.

The Lord Bishop of Southwell and Nottingham: My Lords, there is much that is good in the Bill, as well as some provisions that need challenging. I wish to focus specifically today on Part 11, Clauses 198 to 209 on the community infrastructure levy and its likely impact on charities in general but the churches in particular, which has been referred to several times already. First, though, I had better declare a non-pecuniary interest as a former professional planner as a member of the Royal Town Planning Institute. I serve on the Council of Planning Aid and chair the Churches' Legislation Advisory Service.
	Noble Lords will recall that we have been here before. Last time, the proposed levy was called the planning gain supplement. Little has changed since then except in one important aspect: the planning gain supplement was to be a levy by local planning authorities on the uplift in land value resulting from the granting of planning permission. The Bill provides in Clause 200(5) that CIL may be levied on land even when its value has not increased as a result of the grant of planning permission.
	At the moment, as we know, the system for linking planning gain to local authority infrastructure needs is a Section 106 agreement under the Town and Country Planning Act 1990. It is not mandatory and it is rarely applied to small-scale projects. It looks, however, as if the effects of CIL will be different—although we do not know that for certain because we have not yet seen the fine data of what is proposed, as the noble Lord, Lord Goodhart, referred to earlier.
	The churches and charities generally are very disturbed by the proposal. Unless an exemption is made for charities, CIL will impose a completely new financial burden on them that they will find difficult to bear. The crux of the problem is this: if a commercial developer gets planning permission to build houses for sale, the CIL charge can be passed on to the ultimate purchasers if and when the houses are sold. Charities, however, do not normally develop land for sale—they develop for their own purposes such as laboratories, offices or perhaps, in the case of a university, student accommodation; develop for some purpose such as social housing for rent; or aim to sell part of the site to finance the rest of the development. But there is frequently no sale at the end of the development process from which to pay CIL.
	The Government's position on the voluntary sector was set out in the other place by the Minister, John Healey, during the Commons Committee stage on 31 January. He explained that the principle of CIL is that there will be no general exemptions in line with the current Section 106. He said that the current system is,
	"blind to what developers do with their profits or to whether a developer is also a registered charity".
	He did, however, say that,
	"at some stage this year, when we have been able to discuss the matter in more detail ... we will set out our approach to exemptions. In doing so, we will ensure that any potential qualification for exemption must be fair and justified and refer to an objective set of criteria".—[Official Report, Commons, Planning Bill Committee, 31/1/08; col. 611.]
	We have not yet seen any proposal for exemptions and unless some kind of exemption is provided, projects that would otherwise have been taken forward will be reduced in scope or scrapped altogether.
	This is not simply idle speculation; I can cite a couple of concrete examples. There is a case where the parish facilities are too small for a growing church and where the parsonage is financially unviable for the 21st century. The church has a large hall attached; it also owns a two-storey hall, let as a nursery during the week. A scheme is being developed to provide extended facilities for the growth of the church and work among young people, a new parsonage, and sufficient housing to enable the scheme to become financially viable. The challenge is to provide enough homes to raise sufficient funding to be carried over to fund the construction of improved and extended parish facilities. The scheme is already on the edge of financial viability because of the limited size of the site. CIL would kill it and, quite apart from the effect on the work of the church, some 25 to 30 houses would not be available to address the housing shortage in the area.
	My second example concerns collaboration with the local authority over the relocation of a library which seeks to meet the need for a community centre, a health centre and pharmacy, a new building for worship and a new parsonage. The proposed scheme also includes 13 new homes. The challenge is to raise sufficient funds from the sale of the land to build the new place of worship and to replace the parsonage that has to be demolished to enable the new homes to be built. Parts of the scheme will be local authority/health authority-funded, so the effect of CIL will be neutral, but so far as the church's resources are concerned, CIL would render it unviable. That would deprive the community of 13 new homes and a community centre.
	These are by no means isolated instances. The DCLG's document on CIL, dated January this year, states at paragraph 58:
	"Government agrees if development is not delivered because the CIL is set at unaffordable levels, then the CIL will not be meeting its objective of helping to unlock development".
	For some charities and projects, there are no affordable levels. With the exception of VAT, charities do not pay tax. The reason is that successive Governments of all political persuasions have taken the view that charities, by definition, operate for the public benefit. That is enshrined in the Charities Act 2006. In addition, charities provide facilities that are part of the local infrastructure. Charity trustees do not start building projects as some kind of personal legacy; they do it to advance the objects of the charity.
	As a result of CIL, facilities that would have been built for the benefit of the public will not be built. Is that really what Her Majesty's Government want to happen? How does it fit with their avowed desire to involve the voluntary sector more fully in service provision?
	Finally, the detail of CIL is to be set out in regulations, which we have not seen. As we all know, when they are finally laid, they will be unamendable. I led a delegation from several charitable umbrella bodies to meet officials working on the Bill. We had a useful session and I hope that progress can be made, but we would still prefer to see an exemption for charities in the Bill. At the very least, we want a firm assurance from the Minister that something will be done in the regulations.
	A flourishing voluntary sector helps build social capital and social cohesion. If CIL is imposed on charities, the loss will be to society at large. Schools and houses will not be built, the development of community facilities such as village halls will be hindered, and organisations that are already short of funds to care for important parts of the built heritage will have even less money for maintenance. Where is the public good in that?

Lord Roberts of Conwy: My Lords, I, too, am interested particularly in the Welsh dimensions of the Bill. They are of general interest, not simply because of the complex interaction of the Bill with the planning powers of the National Assembly and its Government but because Wales is a significant source of various forms of energy, including nuclear energy, and water to England, and will, I trust, feature in a number of the national policy statements that will appear in time.
	I hope that the Minister will be able to indicate when we may expect to see those statements, which are clearly important if the Bill is to attain its objective of abbreviating the time taken by planning consent procedures. Like my noble friend Lord Jenkin of Roding, I regret that, although they are to be laid before Parliament, they do not seem to require parliamentary approval.
	In this context, I am concerned particularly about the replacement of the Wylfa nuclear power station on my native Anglesey. The RTZ aluminium works at Holyhead and other plants in the north-west depend on its power supply. One fears that there will be a hiatus of some years between the end of the existing power station, which becomes obsolescent in 2010, and the start of its replacement. If the Minister can give some assurance on that energy-gap issue, I shall be very grateful.
	Looking at the clauses relating to nationally significant infrastructure projects, I note the differences in treatment of some of them because of the differing powers and functions of the Welsh Assembly and the Scottish Parliament. I know that my noble friend Lady Carnegy will refer to Scotland in Committee. Of the 15 different kinds of project listed in Clause 14, and subject to the succeeding Sections 15 to 29, there are some where the Assembly may have functions and others where it has none. It has no power or influence, for example, on onshore generating stations of more than 50 megawatts or offshore stations of more than 100 megawatts. This issue has already caused concern in mid-Wales, where there is a cluster of wind turbine generating stations, and in the resort towns on the north Wales coast, where a 750 megawatt offshore generating station is proposed. If the Assembly has no locus in granting consent to such developments, it is surely essential that Parliament approves the policy statement relating to them.
	The projects in England which come within the scope of the Bill and which are within the Welsh Assembly's planning powers in Wales are quite numerous. They include LNG facilities, gas reception facilities, highways and airport developments, transfers of water resources and so on. I am not sure that these Welsh exclusions from the procedure envisaged in the Bill are necessarily advantageous to Wales—or to England for that matter. Most of our strategic highways, for example, run from east to west over the border to and from England: the M4 in the south and the A55 in the north. The Severn rises in Wales before it crosses the border, and Birmingham and Liverpool obtain their water mainly from Wales. If there were to be highway or water developments in England which required complementary development in Wales but could not be subject to the same planning procedure, it might be problematic. Perhaps the Minister will comment on that.
	I come now to Part 10 of the Bill, which relates specifically to Wales. Clause 195, which appeared belatedly during Committee in the other place, is a framework clause which confers extensive primary legislative powers on the Assembly and its Ministers by amending the Government of Wales Act 2006. After the passage of this Bill, the Assembly will have power to pass Assembly measures, which have the force of law, in connection with the plans of Welsh Ministers in relation to the development and use of land in Wales; in connection with the review by local authorities of matters affecting the development of their areas; and in connection with local authority development plans and plans for land use. However, it is made clear that such legislation by the Assembly cannot prohibit a development consent under this Bill.
	Clause 196 enables Welsh Ministers by order to give effect in Wales to a series of provisions in this Bill that relate to England only, as things stand. There is a precautionary flavour about some of the provisions in Clause 196. However, all in all this is a formidable package of primary and secondary legislative powers for Welsh Ministers. I confess to being personally averse to framework clauses such as Clause 195 because they mean that this Parliament confers primary legislative powers without knowing precisely how they will be applied. All we know is the key subject matter. In this case, I understand, along with the noble Lord, Lord Livsey, that the National Assembly and its Ministers do not intend to follow the broad strategy of this Bill and have devised a planning strategy of their own based on the Planning and Compulsory Purchase Act 2004. Part 6 of that Act is entirely devoted to Wales and contains some 18 clauses dealing with the Welsh spatial plan.
	As the Minister Mr Dhanda told the Standing Committee in the other place on 5 February,
	"Wales has its own distinctive development plan system that is still in its infancy".—[Official Report, Commons, Planning Bill Committee, 5/2/08; col. 663.]
	Assembly Ministers are clearly taking advantage of this Bill to consolidate and increase their primary legislative powers—sometimes, it seems, just in case they are needed—and to extend such powers to reviewing local authority plans and ensuring that such plans are produced to their satisfaction. They already have some similar powers under the 2004 Act and it is not clear why they need them under the Bill. Local authorities in this context include national park authorities. It may be that some will feel that the Assembly is taking local intervention in this instance a step too far, confirming yet again its strong centralising tendencies.
	Finally, I note that Assembly Ministers are among the list of those who may charge the community infrastructure levy. We all look forward to seeing the regulations, which are required in Part 11, to spell out in detail how the levy is to be imposed and the proceeds applied. The more one reads Part 11, the more distant the levy becomes from the individual development to which it relates.

Lord Bradshaw: My Lords, I shall speak about energy. I am a member of Sub-Committee B of the Select Committee on the European Union, which is conducting an inquiry into renewable energy. The views that I am expressing are personal and not the views of the committee, which has not yet published its report.
	Onshore wind energy is the only credible means of attaining the Government's target of 15 per cent of our energy needs from renewable sources. I agree with the right reverend Prelate the Bishop of Liverpool that this will have to be a minimum if we are to meet the views of the Climate Change Bill.
	Most people support this government aim, but the most vocal opponents of the means of gathering and transmitting wind energy are proponents of renewables in theory. They oppose it on two points. They talk about the democratic deficit, and then about the environmental impact of the means of generation and transmission. The irony of these debates is that if you subscribe entirely to these two points of view you effectively rule out the timely exploitation of the most likely source of renewable energy and make ever stronger the case for nuclear energy and building more coal-fired power stations. You cannot have one thing if you rule out the other.
	I turn to how the planning system may help the generation and transmission of wind energy. First, I suggest that the Minister revisits the size of generating stations, as set out in Clause 15 of the Bill. Fifty megawatts is a reasonable amount; it is a small amount if you are talking about a large coal-fired, gas-fired or nuclear station. However, it is far too large to deal with the wind turbines unless there is a large array of them, a matter referred to just now by the noble Lord, Lord Roberts of Conwy. I believe that this limit must be reduced urgently, or there must be some mechanism of grouping a lot of wind turbines together. As these become available, it should also be possible to fit more efficient turbines to the windmills without seeking fresh planning consent.
	Secondly, we must resolve the issues surrounding transmission. There will have to be new means of transmission as the places best suited to wind generation are on remote coastal sites where the grid is at its weakest. The noble Lord, Lord Mogg, is the chairman of Ofgem. I believe that the duties of that body are to focus solely on the costs of the system to present-day users. These duties need to be refocused to ensure that electricity is generated from renewable sources and that the electricity is transmitted efficiently in the long term. In this respect, the duties of the national grid need attention so we can get away from the present first-come-first-served system of allocating connections which leave a number of completed wind-power turbines unconnected to the national grid. The system of connect and manage appears to be more appropriate. The sub-committee is presently of a mind to suggest that the Planning Bill, as it now stands, does not create a predictable planning environment for renewable generation.

Lord Rosser: My Lords, I support the objectives of the Bill. As has been said, our planning system for major projects seems to be designed to promote delay and uncertainty and to put off for years the making of firm decisions. Currently, the investigation or inquiry into each major project dwells not so much on the planning issues affecting the location but on the national policy issue of whether the project should be proceeding at all. The Terminal 5 inquiry may have been good business for the Heathrow hotel where the proceedings were held and for the lawyers involved, but the delay of many years before a decision could be made one way or the other was of no benefit to the nation or to our credibility with other countries.
	Under the current system, major energy projects involving gas storage, wind farms, power stations and transmission line upgrades have also been subject to delays running into years. Obviously, major infrastructure projects can be controversial. The Bill should not be a device for forcing through proposals that do not stand up to close scrutiny. It is just as important that a decision not to proceed with major infrastructure proposals should be made without inordinate delay as it is that decisions should be made without excessive delay to proceed with major projects that stack up and are in the national interest but may not be welcomed by everybody.
	No planning system will ever be universally regarded as perfect, since the perfect system gives the answer that you want. However, we can provide for a procedure that is open and easily understood, provides accountability, allows all relevant voices to be heard, distinguishes between the setting of the policy and the making of the decision on the planning application and allows the planning decision to be made in a reasonable time by independent experts in a more inquisitorial, rather than adversarial, setting. We do not have that now. I also suspect that those who think that an independent planning commission would rubber-stamp any major project put in front of it are in for a surprise. As it is, many seem to feel that the current quasi-judicial decisions of Ministers—accountable to the courts, not Parliament, in this field—on major projects have an air of inevitability.
	We are faced with a need to make decisions on a number of major energy infrastructure projects in the near-to-medium future to address the impact of climate change and changes in the cost and availability of existing sources of energy. The present situation in the housing market does not alter the fact that a significant number of new homes are needed to meet demand, not least for first-time buyers wanting affordable homes. We need a planning system capable of generating sensible and balanced decisions on major projects to meet that demand, without undue delay, within the framework of national policy, while paying proper regard to environmental considerations. Major infrastructure investment will be needed in transport, air, sea and rail. Our railway system is operating at or near capacity on many key routes, affecting the ability to cater for further growth in both passenger and freight transport. Consideration must be given to new high-speed rail lines, underground and light rail links in our major conurbations, as well as to further increasing capacity on existing lines.
	We need a planning system that enables decisions on projects that may prove controversial, at least for those adjacent to them, to be made within a reasonable time. The inquiry must relate to local impacts and not end up with a reopening of the debate on the national issue of whether we should be expanding our railway network. That debate will have taken place in the discussion and consultation on the national policy statement, which will also have been subject to an appraisal of its sustainability, with individual projects also having to be subject to an environmental assessment.
	Delay in making decisions on major infrastructure schemes—whether to proceed or not with a particular project—costs money, prolongs uncertainty and simply puts off decisions that cannot be ducked for ever to a later date, to the detriment of the national interest. The Bill seeks to address the defects in the present system and, in so doing, to provide a clearer and more prominent role for Ministers and Parliament in setting policy on the national need for infrastructure. It provides a duty on promoters and developers to consult the community as they work up potential applications, including an environmental assessment. It provides for decisions on individual project applications within the framework of the national policy to be made by independent experts within clear deadlines in a less adversarial setting than at present, with those who register an interest having a right to be heard.
	The Conservative Member of Parliament, Mr Eric Pickles, said in the other place last year:
	"Our planning system can at times be slow, too expensive and too bureaucratic. We must never see a repeat of the painful process of approval for terminal 5 at Heathrow".—[Official Report, Commons, 8/11/07; col. 276.]
	He is right on that point. We need to change the system. I support the Bill.

Lord Cobbold: My Lords, I declare an interest as a landowner in the green belt in Hertfordshire. I welcome the principal objective of the Bill to make more efficient the planning and implementation of nationally significant infrastructure projects. However, I cannot but wonder whether it would be possible to achieve the objective with a Bill of fewer than 189 pages.
	What is not needed is a massive increase in bureaucracy in an area that is already complicated enough. In this context, a part of the Bill that I found confusing was Clause 59(2), in which the chair of the Infrastructure Planning Commission must decide whether an application is to be handled by a panel or by a single commissioner. However, before making the decision, under subsection (4) the chair must consult the other commissioners who are members of the council. This is the first mention of the word "council". You have to go to paragraph 6 of Schedule 1 on page 142 to discover what the council is. It is not clear even then exactly what the respective roles are of the commission, the council and the panels.
	Another difficult issue is whether, having issued a national policy statement, the Secretary of State can really escape responsibility for the underlying projects. Because of their national importance, the projects concerned are bound to attract political controversy in spite of a published national policy statement.
	The Bill is not limited in its coverage only to infrastructure projects of national importance. Part 9 deals with proposed changes to existing planning regimes. I propose a modest change to green-belt regulations that is not in the Bill. While I fully accept the basic objectives of green-belt policy as set out in PPG2, their blanket application has had the effect of freezing in time all development in villages and hamlets that are within the green belt. There are many small and medium-sized sites in green-belt locations where modest, well designed and appropriate development could be permitted without threatening the value and openness of the surrounding green-belt landscape. This would permit villages and hamlets to continue their natural evolution, while some affordable housing would enable the next generation of village dwellers to stay in the area. The Minister is aware of my concerns in this area and I hope that we can address them positively in the later stages of the Bill.
	Part 11 introduces a proposal for a community infrastructure levy, which is designed to ensure that costs incurred in providing infrastructure to support the development of an area can be funded wholly or partly by owners or developers of land whose value has increased due to permission for development. These functions are covered by Section 106 agreements, the need for which is recognised by landowners and developers. However, to retain Section 106 agreements, as is proposed, at the same time as introducing the CIL sounds excessive and dangerously reminiscent of the dreaded development land tax, which dried up the supply of development land in the 1970s.
	A lot of work needs to be done on the Bill, but in principle I welcome its objectives.

Lord Howarth of Newport: My Lords, the Bill represents a serious attempt to grapple with a very important problem. We urgently need a better planning process for major national infrastructure. The Bill imaginatively seeks to reconcile the requirements of clarity of policy, full analysis of particular proposals, opportunity for all affected to be heard, democratic accountability and good quality decision, and all that in a reasonable timescale.
	I should like to consider three issues in connection with the Infrastructure Planning Commission. The first is accountability, with which the House of Commons has already wrestled. The system the Government propose represents an advance in democratic accountability on the system that it will replace. The national policy statements will be subjected to public debate and to parliamentary scrutiny and dialogue between Parliament and the Secretary of State. The noble Baroness, Lady Hamwee, noted that they would be unamendable, and she was concerned about that. However, I understand that the Government intend that national policy statements should be submitted in draft to Parliament, so to that extent we will have the opportunity to influence their eventual form and content.
	My noble friend Lady Andrews rehearsed all the many occasions built into the legislation upon which there will be consultation, local authority engagement, parliamentary scrutiny and opportunity for objectors to be heard, but we are still left with the vexed question of who finally should make these decisions. The Government propose that it should be the IPC within the framework of democratically mandated national policy statements, extensive consultation and engagement with local government, and parliamentary oversight.
	I remain uncomfortable at the thought that such major planning decisions that affect so many people's lives so importantly should be made by an appointed body. Planning is about reconciling conflicting interests, particularly, as my noble friend mentioned, where it is proposed that the local interest should be subordinated to the national interest. All of that is an intensely political affair. I recognise that the IPC will be the successor to the planning inspector, who is not accountable to Parliament. I recognise that under the present system the Secretary of State, in taking decisions, does not act as a freewheeling politician, but in a quasi-judicial capacity in which she is considerably constrained, and that Parliament cannot reject or amend the decisions that she takes in that capacity.
	My noble friend the Minister also drew attention to the important reality that the Government will often be the promoters of development proposals. It does not seem right that the Government, as applicants, should make judgments in their own interests. I note that where no national policy statement is yet designated, the Secretary of State will take the decision, and when the Government take the view that there are security interests or other special considerations about which we are to be told, the Secretary of State can take over from the IPC the responsibility for taking the decision. Therefore, the Government do not see a decisive objection in principle to Ministers taking these decisions. However, it is not obvious that Ministers should take them.
	If that is the case, then should Parliament take these decisions? Again, the answer to that is not obvious. Certainly, this House should not do so; our role is to scrutinise and advise, but not to decide. We may well disagree with the House of Commons in our judgment on a proposed NPS, but in the end it is our practice to defer to the elected Chamber. But should the House of Commons decide? We are told that some 45 major infrastructure decisions will be taken each year. I note that that figure has crept sharply upwards from the number adumbrated in the planning White Paper at paragraph 5.57, which anticipated 10 major infrastructure decisions a year and a number of others. The White Paper suggested that in a heavy year, there might be a peak of 25. We need to keep a watch on this process of creep and ensure that only the decisions that really ought to be made through this process are subjected to it.
	Whether 10, 25 or, more likely, 45, decisions are to be made each year, they would represent a massive workload for the House of Commons. The parliamentary timetable means that that workload could not be undertaken in any worthwhile depth by the whole House or by a single Select Committee. If these decisions were to be taken by ad hoc committees of the House of Commons, I would suggest that the distinction between government and Parliament is sometimes rather less than it may appear, because the majority of appointments to those committees will be at the Government's disposal. Whatever the cajolery and dragooning of party Whips, MPs are of course free and, doubtless, robust, and parliamentary decisions are democratic.
	There is no evident solution to this conundrum and I hope that we shall think hard during the passage of the Bill. If we are unable to come up with a better idea, then maybe when there is a review in a couple of years—I agree with those who have suggested that it should be rather later than that—we can come back to the problem.
	My second area of concern about the proposed arrangements for the IPC and this whole process relates to design, about which my noble friend Lady Whitaker spoke so thoughtfully. I remind the House that I am an honorary fellow of the RIBA, which will make proposals to amend the Bill in respect of design. It seems to me essential that high-quality design should be factored into these applications and decisions, and, to the extent that they are, it will assist their acceptability by the public. We are talking of major infrastructure—by definition, conspicuous—and of course it should be well designed, and the Government should favour that, as they do. They say in planning policy statement 1:
	"Good design is indivisible from good planning".
	However, we cannot take it for granted that there will be good design within this process. There are many conflicting pressures, and we agreed recently in our consideration of the Housing and Regeneration Bill that an explicit additional duty should be laid on the Homes and Communities Agency to contribute to the achievement of good design in England. I am comforted that in her speech to CABE on 25 March the Secretary of State, Hazel Blears, said that it is,
	"absolutely vital for our planning system to support high-quality design".
	How, then, should it be done? As the Minister suggested, the best opportunity will be to incorporate this requirement within the national policy statements. We should consider laying a duty on the Government, in formulating the national policy statements, to promote good design. There is already a duty on the Government to promote sustainability—that is an aspect of good design—and I do not see why that duty should not be drawn more widely. Similarly, the IPC should have a general duty to promote good design, as we laid on the Homes and Communities Agency. I certainly hope that Ministers will be concerned to appoint as members of the IPC some people who are expert and committed to good design. One way or another, we should reinforce through all means available to government—through targets, guidance, reporting requirements and evaluation procedures—the drive for good design.
	Finally, I want to say a word about heritage. The planning White Paper said:
	"Planning ... seeks to protect and enhance our natural and historic environment".
	It also said:
	"A high level of protection should be given to our most valued townscapes and landscapes".
	In the Bill, extraordinary powers are accorded to the IPC: to apply, modify or exclude provisions in primary legislation and, if I have not misunderstood, to set aside listed building planning consent, conservation area consent and scheduled monument consent regimes. As the Minister said, the remit in respect of heritage should be set by the national policy statements, and there should be a duty on the Government in preparing national policy statements to have regard to heritage. There should also be a duty on the IPC to respect and seek to conserve heritage. English Heritage and Cadw should be statutory consultees, and perhaps we should have clauses to specify special parliamentary procedures, such as those for National Trust land, common land and rights of way. So, too, there might be special procedures where grade 1 listed buildings and grade 2 star listed buildings are in question, together with the most important monuments and landscapes.

Lord Inglewood: My Lords, it is late. I shall try to be brief because it is a case of "nox longa, oratio brevis".
	I have a number of interests in this area. They are recorded in the register and I do not wish to enumerate them now. I should like to confine my remarks to four main points. First, I have a few thoughts about the complication of the existing planning arrangements. Secondly, I wish to make a comment or two about how democracy and accountability relate to the determination of planning applications. Thirdly, I have a few considerations on making the grant of planning permission conditional on extra tax or levies. Finally, I should like to share a few thoughts about the implications, as I see them, arising out of the recently announced proposals for the siting of this country's repository for long-term nuclear waste.
	Not to put too fine a point on it, it seems to me that in this country the system for authorising changes in land use and development—I include but do not confine my comments to planning permission in this context—are far too complicated. This is bad for the user; it is bad for the administration; and it is bad for all those who are affected. That seems to lead to the breakdown of respect for government, as well as an enormous waste of national resources.
	I have some sympathy for the Government's approach, extending the idea of granting planning permission through secondary legislation—an idea pioneered by my right honourable friend the Member for Suffolk Coastal in the 1990s. Of course, the fact that it is brought forward as an idea is, it seems to me, a very real indictment of our general system of land use control. This is something that I anticipate coming back to in both the context of this Bill and the context of future discussions about heritage, which was touched on by the noble Lord, Lord Howarth.
	It seems to me that in this country, in a whole variety of areas, we are creating a system of far too complicated, expensive, fancy legislation which we simply cannot administer. The planning system is an example of that, but perhaps the most obvious example of the malaise is the system which has been introduced in England by Defra to deal with the single farm payment, of which, I regret, I have been a victim. It is a wonderful system. It is intellectually far and above anything else introduced in the other home countries. Unfortunately, it is completely unworkable. In this country we have to turn things round, keep things simple and recognise that the best very often is the enemy of the good.
	Turning to some of the democratic and accountability aspects of our planning system, it is very important that we recognise that it is neither right nor feasible to conduct plebiscites on everything. After all, developers, landowners and affected parties of all kinds have a right that proposals which are being thought about are considered properly and judiciously. I really do not think that they should be determined by popular whim, rather like TV game shows. I believe that is a parody of democracy. I apologise for sounding as I did in my speech on the European reform treaty.
	In my opinion the really important point of public participation in the planning system should be in plan making rather than in development control. I speak as someone who has chaired a planning committee for four years in the Lake District. That process must be essentially non-partisan and the absolute opposite of populist in order to ensure that all those affected have a proper hearing. It is very interesting that for many years, if one ever wanted to develop a pub, one needed to get planning permission from the local authority and a licence from the bench. It may come as a surprise to noble Lords to know that I am a licensee. I remember going in front of the bench and I confess that I felt, in general, confident of a fair hearing.
	In a democratic society it is important that, if the system under which we are administered puts decisions out to commission, the politicians who establish or inherit that system fully understand that they are as politically accountable for the decisions that arise from that as if they had they taken them themselves. If my memory is correct, the Minister confirmed that that was so with the Infrastructure Planning Commission and I am sure that this is a very important point which needs to be underscored.
	On levies and charges, at the risk of stating the absolutely obvious, development costs money and if charges are added, development becomes more expensive for the developer. Often that discriminates against those who develop for their own purposes as opposed to those who develop for onward sale. In practice, that often means that the small man is harshly treated. It is important that the Government tell us what, if anything, they intend to do to counter that discrimination against the small man. Setting aside arguments about unearned increment, which I believe should be dealt with in the context of general taxation because it applies well beyond land, it seems to me that any levies imposed pursuant to grants of planning permission must be directly linked to consequential infrastructure, which, in turn, must relate directly back to the proposal in question. I also believe that the money should be collected at the point when it is used and applied and not simply be gathered into a big pot.
	We all recognise that it is tempting for governments, not least when the money is running out, as it seems to be a little now, to see charges of those kinds as a kind of unhypothecated source of general revenue. The Minister very fairly said to us earlier, if I remember correctly, that the Government have no intention that that should occur and that the detail of the legislation will ensure that whatever arrangements are put in place cannot be transferred in that direction. Again, if that is the case, I urge the Government to underscore that point to put people's minds at rest.
	Finally, I shall say a word about the recent announcement about the proposed nuclear waste depository. From an intellectual basis, I was rather startled to hear that the Government are proposing to offer sweeteners to the community in the place in the United Kingdom—it is important that all the home countries are involved in this investigation because it is not a devolved matter—where the depository might eventually be sited. In terms of principle, this is a radical change of approach from what we have been used to in this country. How far does this extend? Is it now open to developers to offer all kinds of unconnected sweeteners beyond Section 106 agreements? If communities are to be offered benefits, what about compensation for injurious affection suffered by landowners whose property may in some way be adversely affected by public sector development? I assume it will not be open to developers simply to hand out £10 notes to whoever might want to receive them, but this is an interesting change, and it is important that the Government set down the parameters that they are imposing on themselves in this circumstance and explain to the rest of us how they see this approach developing in future.
	I say this with some regret, but there is a real malaise within our planning system in the way it is working. Whether what is on the table is the right way to go will no doubt become much more apparent to us as the Bill takes its course through this House. I look forward to participating.

Lord Oxburgh: My Lords, I do not believe that many people are satisfied with the present arrangements for managing planning applications for large-scale infrastructure projects in this country. They are cumbersome, slow and expensive. Several noble Lords have already drawn attention to the unfortunate circumstances surrounding Terminal 5. Whether one approves of that project or not, it cannot be right that it had to submit more than 30 separate applications. More importantly, our present procedures are probably incapable of supporting the scale and speed of infrastructural change that is needed if we are to have power, water and communications systems that are appropriate for sustainable living in the changing climate of the 21st century.
	At this stage, I declare interests as a director of Falck Renewables and Blue-ng.
	Much of the problem is that at present we have no effective way of identifying national needs and taking them into account when planning decisions are made, essentially at a local level. This Bill is a welcome attempt to tackle this problem through its two main high-level features: national policy statements and the Infrastructure Planning Commission. These two major elements are supported by a host of ancillary proposals, and I have no doubt that we shall wish to return to them and scrutinise them in considerable detail at a later stage. It is encouraging that sustainability is to be given a high priority.
	Today I wish to concentrate only on the national policy statements that will be prepared for various elements of national infrastructure. Once they are agreed, they should go a long way towards setting a framework within which a range of other decisions can be made in a rational and consistent way. These statements will not be easy to write. I hope that, whatever public consultation goes on at a later stage, the departments responsible will, early in the process, consult the relevant professional bodies whose members will face the practicalities of implementing them.
	The Bill gives an indication of the kind of work that will go into the preparation of the statements and the general areas of activity that they will cover, but it is difficult to comment in more detail without getting a feel for the content in a way that will be possible after seeing the first one or two. It seems to me, however, that whatever the content of a national policy statement and however much consultation there has been in its preparation, it is very important that it should carry moral as well as legal authority.
	I am not convinced that, in its present form, the Bill goes far enough in that direction. The provision for consultation is certainly generous, but we must face the fact that many people have become cynical about the value of government consultation and believe that consultation is a ritual dance performed by departments before doing what they intended to do all along. That view of consultation may be quite unfair, but in these matters, perceptions are at least as important as reality.
	In my view, that difficulty could be resolved by clearer parliamentary involvement—as a number of noble Lords have suggested—in the approval of the national policy statements. One way of doing that would be through some kind of affirmative parliamentary procedure that gives opportunity for debate in both Houses.
	Governments may feel that that is a luxury for which it would be hard to find parliamentary time. However, there are and will continue to be strong and divergent views on infrastructure development. Achieving parliamentary endorsement would be time well spent and would give the national policy statements a moral legitimacy that they would otherwise lack. It would make them much more difficult to challenge by special interest groups, and even those who opposed the plan would know that it was not simply a bureaucratic diktat, but had been examined and approved by Parliament—if not as the best option, at any rate as the least bad.
	If the plans themselves have parliamentary approval, there should be less concern about the role of the Infrastructure Planning Commission, which would then have a quasi-judicial function, as various noble Lords have pointed out, in assessing the proposals for conformity with the plans. A clear statement about a greater role for Parliament in the approval of policy statements might also meet some of the concerns expressed about the commission in the other place.
	Renewing and replacing our infrastructure is urgent, especially with respect to energy, but in other ways as well. The Bill is essential to facilitate that process but, equally important, along with the Energy Bill and the Climate Change Bill, it forms the third member of a troika of Bills that will allow the Government to implement their climate change strategy. I congratulate the Government on this initiative.

Lord O'Neill of Clackmannan: My Lords, I am happy to follow the noble Lord, Lord Oxburgh. I often agree with him on many things, but I do not want to go down quite the route that he is going down this evening.
	Before I get under way, I should express an interest. I am the chairman of the Nuclear Industries Association and have links with several energy-related activities. However, it is fair to say that I am not here banging the nuclear drum this evening, because the infrastructural requirements of a balanced energy policy require us to have a variety of sources of generating capability. All of those sources will require planning permission and agreement over time. Therefore, the process to which the Government will be committed in the Bill affords us the opportunity of, in the first instance, getting a clear idea of what they want to do in relation to a variety of infrastructural activities. It is welcome that, in the case of aviation and nuclear developments, the permissions and understandings will be obtained on a site-by-site basis. I think that that is the correct way to do that.
	It is also fair to say—a point made by a number of people—that if we in this country are to realise our ambitions for meeting climate change targets and getting the necessary foreign investment to accompany the indigenous investment, to that end, we must be able to signal to those investors that the planning procedure will not be overextended and not, at the end of the day, so sicken the people who wish to invest that they decide to walk away. The assumption in the United Kingdom that we can fund all these project is naive and unrealistic at this time. It is also fair to say that the existing procedure can be summed up in the name of the fictitious Edinburgh law firm Delay, Muddle & Expense. In the first instance, the Government must clearly express their policy. In the second instance, the IPC must examine the detailed proposals. We must also involve, almost at the pre-planning stage, the communities and interest groups that will be affected, so that some of their concerns can be taken on board before we move to the next phase—the IPC.
	I do not want to take up too much of the House's time, because I realise that we all want to finish. I will just make the point, which I do not think has been made already this evening, that in the recent past we have changed the nature of political accountability. For many years, the Treasury had the power to change the bank rate—the bank rate could be changed at the whim of the Chancellor. It could be changed for political reasons as well as economic ones. Anyone who suggests that under the present system of political accountability, as exercised by Ministers of all stripes, this power has been dealt with in a quasi-judicial, non-party fashion is, frankly, kidding themselves.
	We have abused projects in exactly the same way in which we abused our economy through our arbitrary exercise of the ability to change interest rates. How many significant projects are decided in a Conservative constituency in the run-up to a general election when the Tories want to get back into power? Equally, how many difficult decisions will be addressed by a Labour Government as we move towards a general election in the next 18 to 20 months? Let us have none of this stuff about political accountability and how we raise it to some level at which Ministers decide on the best possible advice and everything is done. We are kidding ourselves.
	Equally, we know that anything goes in minor planning decisions in Tory wards with Labour councils. While they are not whipped, cannot be whipped and do not have group meetings, there are nods and winks and understandings are arrived at. This happens across the political board. Let us have none of this hand-on-heart stuff about political purity and accountability, because it is sheer hypocrisy. It certainly flies in the face of the harsh realities of elections. Even if there was some political involvement in this House or the other place, it would by and large be the job of the Whips to get the bodies through the Lobbies to support line A or line B.
	Let us see whether there is a better way of doing this. I have suggested that there is a parallel with the MPC. At the end of the day, Parliament can change the law. At the end of the two years, Parliament will have the opportunity to review the procedures and see how they can be dealt with. If we are to give to Parliament certain powers over the appointments and consideration of the national policy statements, we must also recognise that the Select Committee system as presently constituted is not capable of handling it. As someone who chaired a Select Committee for 10 years, I know that in some areas of the work of Select Committees—I have just finished chairing one in this House—the capabilities and forensic skills of their members could well be helped by the kind of legal counsel that is available to comparable committees in the Senate and the House of Representatives. Equally, there must be some sensitivity in scrutiny before appointment. We have all seen the rather brutal way in which some members of the MPC have been treated by the Treasury Select Committee, when self-indulgent Members of the other place have been quite unnecessarily rude and abusive to them. If folk have to go through that kind of experience, it might deter some of them from going into it. We have to recognise that, as a Parliament, we will have to share responsibility for certain duties.
	On balance, the proposals on offer from the Government are, as has been said, perhaps not the best, but the best should not be the enemy of the good. We have here an opportunity to correct some of the obvious defects of our discredited system, which no one in this House has been able this evening to defend with any conviction or authority. I find the nitpicking of those opposite disturbing and disheartening. If, as a Government, they had to make these decisions, I cannot see them coming to very different conclusions from those that we as a Labour Government have advanced this evening. I am happy to support the Bill on that basis. It is not perfect. We have a wee bit more work to do. But it is a damned site better than what we have had in the past. What is more, if it is good and it delivers, it will enjoy a credibility in the public eye that the present planning system does not have and, frankly, does not deserve.

The Earl of Caithness: My Lords, I regret to have to say that this is the worst Second Reading of a major Bill that I have ever attended in my 38 years or so in this House. It started badly with the complete shambles of the Government's programme for the first legislation today. I have to say to the noble Baroness the Captain of the Gentleman-at-Arms that she has done a superb job as Chief Whip, but today she made the wrong call. As soon as she knew that there would be late government amendments to the previous legislation, she should have deferred consideration of this important Bill to another day, so that we could start it at the usual time. After all, what is the hurry? The Government have just wasted two weeks in another place while they bought off rebels in order to secure the progress of the Bill.
	Another reason why this is the worst Second Reading that I have attended is the lack of detail in so much of the Bill. We should all read, and read again, the demolition job that the noble Lord, Lord Goodhart, did of Chapter 11. It is extraordinary that the Minister, for whom I have immense regard, should have allowed a Bill to come before your Lordships' House where so much approval was needed by another place with no input at all from this House. That has to change. The Minister owes it to this House to produce a great deal more detail so that we can at least have sensible debate in Committee.
	I declare an interest as a surveyor. I have been a developer and I have acted for developers in the past. Planning affects us all. It is integral to how we shape the world and this country in which we live and which we love so much. I agree with all noble Lords that there is no doubt that the planning system needs reform. However, let us not blame it just on the planning system. Half the problems with planning come from the prevarication and delay of Ministers who have refused to bite the bullet and take decisions when they should have done.
	I thoroughly approve of the principle of the national policy statement. It is a good idea, which I have thought for many years is badly needed. However, in this country's system of adversarial politics, I am concerned about what happens when we have a change of Government. My mind goes back to 1997. If we had had a national policy statement on transport at that time, undoubtedly one its key elements would have been the improvement of the A40 in west London. The moment the Labour Party came to power, Mr Prescott decided to put an end to that, which was to the huge detriment of UK plc. That is a good example of where, when we get a change of Government, the Opposition will seek to curry votes from a section of the community in a way that will affect a national policy statement. That needs careful attention.
	A second example is that of nuclear. It is now all the talk in Parliament, but could you get a government Minister to even mention the subject five years ago? No. I seem to remember that when Labour came to power it said that it would not build any more nuclear power stations. We have eight if not 12 coming along; with a little education and time in government, Labour has changed its mind.
	Missing in the areas that should be considered in the national policy statement is flood defence. I ask the Minister why flood defence, which is so important when it comes to climate change and securing our coastlines, is not considered important enough to be included in the national policy statement.
	We must not forget that every single national policy statement will be open to judicial review. The noble Lord, Lord O'Neill, approves strongly of the review in two years' time, but I want to have a little bet with him that there will not be a national policy statement in two years' time—there certainly will not be any planning permission under it, because such statements will all be subject to judicial review. We know that Government NGOs are looking at this at the moment and I fear that those who have been bought off with the promise of a review two years hence will find that there is nothing to review.
	Let us move on to that unelected super-quango, the IPC. This is a sad development because it just continues the policy started by Mr Prescott in 2002 to abolish local democracy. It is not a sensible way forward in terms of tackling the important decisions that are needed. Moreover, I do not think that anyone has mentioned the fact that the IPC will cover offshore wind farms. At 9.30 tomorrow morning, a number of us, including the noble Baroness, Lady Miller of Chilthorne Domer, will be working on the draft report on the Marine Bill that will come before your Lordships in due course. The major role to be played by the IPC in that arena is clear. I know that the noble Baroness knows all about it and will tell us more.
	On the question of wind farms—in the north of Scotland we suffer badly from the problem—it is not the wind farms themselves that are holding up development; the national grid is the real problem, as it has no capacity. A lot of good tidal power development, which to me is much more important than wind farming, is being delayed not by the planning process but because there is no capacity in the national grid. It is a good thing that our party is committed to abolishing the IPC if it ever gets off the ground.
	I turn to the community infrastructure levy. The Minister calls it CIL; I shall go one further and call it silly, because I think that it will stop completely a whole lot of development. We saw that with the development land tax, which I remember well when I was a surveyor—it stopped all development. The CIL will do exactly the same. One has only to listen to the right reverend Prelate the Bishop of Southwell and Nottingham and the noble Lord, Lord Best, who have huge experience in the charity and church worlds, to know that there will be no development. From the heritage and conservation point of view, it will be exactly the same, particularly if the land or the property is owned by a charity. If, for instance, a charity is trying to preserve an historic building—I declare an interest in that I am trying to preserve a castle in Scotland—and it has to pay the CIL for putting up a visitor centre whose whole purpose is to help to preserve the monument, there is no way financially that that could ever happen, so the building will fall down. The Government are destroying the one thing that they are seeking in other parts of government to maintain. This is a real concern and the noble Lord, Lord Best, was right to mention housing associations in this context.
	I also think that the CIL will be used by local authorities to stop developments such as intensive livestock units. I can see that being a really good one if they are allowed to set the CIL at whatever level they choose; farming will not benefit from the authorities that do not like it. Also, I do not trust the Government or local authorities. One has only to look at Purbeck District Council and see the charges that it is levying on people who apply to add a bedroom to a house. Local authorities will abuse the silly CIL system to raise extra revenue because it will be a wonderful opportunity to do so. If they start to do that, development will stop.
	It concerns me hugely that local planning authorities will be allowed to withdraw permitted development rights without the approval of the Secretary of State. Again I put on my on countryman hat, because many farmers use the facility to put up small-scale developments and will be severely affected if the local planning authority can take away that right. I hope that the Minister will confirm that, in the event of a local authority taking away that right, compensation will be paid to those who are adversely affected.
	In general, there is no doubt that we need to address the planning system and make it speedier. Sadly, what is in the Bill—or, more particularly, what is not in the Bill—will be a matter of huge debate at later stages, if we get anything tangible to debate at all.

Baroness Miller of Chilthorne Domer: My Lords, I am sure that the Government think that the Bill addresses the question of sustainable development. The problem is, as the Minister's introduction showed, that at the moment the Bill is heavily tilted towards the economic, to the detriment of society and the environment. She mentioned the modern economy and building on economy and society. I lost count of the number of times she mentioned economy; it was on at least three or four occasions.
	I associate myself with the comments of the noble Lords, Lord Judd and Lord Howarth, about the value of landscape and the need for there to be in the Bill a duty to have regard to landscape, biodiversity and all the other things that add up to the environment. In my experience as chair of the planning committee of a local authority for a number of years, the large infrastructure projects were not always the most controversial. Projects which deeply affected society were often more controversial. Plans for rehabilitation hostels, for example, were almost impossible to pass unless councillors from all parties stuck together. This is where I part company with the noble Lord, Lord O'Neill, because councillors of all parties did stick together quite well and tried, against enormous local opposition and nimbyism, to pass plans for facilities such as rehabilitation homes for drug addicts, Travellers' sites—another extremely difficult example—and even supported housing for the mentally ill. It is shocking to think that such projects are so often opposed by the very communities within which their mentally ill live. The Bill sees infrastructure entirely in terms of large energy and transport projects, but I suggest that infrastructure also includes the kinds of projects that I have mentioned which society needs.
	The Bill focuses too much on economy by giving powers to the RDAs to take over planning functions. As the Minister will appreciate, RDAs are primarily bodies with economic targets, with success measured by their sponsoring department largely in economic terms. I agree with the noble Lords, Lord Lucas and Lord Cameron of Dillington, that this is undesirable. RDAs should not be a part of the planning picture; that is not what was envisaged when they were set up.
	I wonder why there is a need for the IPC. Various bodies have reflected democratic accountability better. I can see the point of national policy statements and, on a regional basis—whether we call them, as in the past, the regional strategic planning framework or whether we call them RPBs—a collection of local authority executive planning members, who are accountable to their electorates and who come together to form regional bodies to deliver the national planning statements, would be a lot stronger a method of building on democracy than inventing an IPC which will undermine it. It was a tried and tested system for delivering housing numbers, which was not an easy thing for the Government to deliver. Perhaps the Minister could point to where regions actually failed in that. Yes, they had big fights, but they delivered in the end, even on the Government's predict-and-provide model.
	I shall use the rest of my time to mention the issue of the IPC and the marine environment. The noble Earl, Lord Caithness, referred to that, and I agree with his comments about the fact that much of the issue of energy generation at sea is to do with grid capacity and bringing that energy onshore, rather than anything else. As a member of the Joint Committee on the draft Marine Bill I have learnt a great deal more about the issues. I am not going to comment at all on that report because we are simply discussing the draft in the morning, but the split in the Planning Bill between the Marine Management Organisation and the IPC is totally premature. The draft Marine Bill, which creates the spatial marine planning system, will not even be introduced until the new Session. No one knows yet what the duties of the Marine Management Organisation will be or what it will look like; we know very little about it at all. There are substantial arguments to be had about its responsibilities and duties. If the IPC exists, maybe it should be responsible for some of the permissions at sea, but it is wrong to decide now in this Bill that the figure should be the amount of power generated rather than, say, the area of sea covered or the area of seabed covered, or whether indeed the Marine Management Organisation might be more relevant to those developments inshore up to the six-mile limit while the IPC could cover those between six and 200 miles offshore. Those decisions should not be made until the Marine Bill is in place. To do so now is premature.
	I shall be tempted to table an amendment to Part 3 to say that nothing designated under that part should come under those clauses of the Serious Organised Crime and Police Act that criminalise protesters so extremely, should they trespass within the sites that the Secretary of State can choose to designate. I can see that, with democracy undermined in the way that the IPC threatens to do, there will be a need for protest. Provided that the protesters are protesting within the law, that law should not include the SOCPA clauses that mean they are treated virtually as terrorists and subject to terms of imprisonment that are quite inappropriate for protesters. Swampy made a good point. He would probably just be coming out of prison now if SOCPA had applied then and the Newbury bypass area had been designated. I say to the Minister that that is an amendment I shall want to debate.

Lord Woolmer of Leeds: My Lords, I rise to support the clauses of the Bill that deal with the issue of national policies and the role of the IPC, and to make perhaps less supportive remarks on certain other aspects of the Bill. I declare an interest: I am a partner in a consultancy that works with major developers on involving stakeholders and so on in big developments. It is that part of the Bill—as you would imagine, with my experience—that I support. The very best large developers do that already, but with regard to major schemes it is essential. I shall come back to that.
	With regard to national policies, providing clear national policy statements after thorough and effective public consultation and parliamentary scrutiny will be a substantial step forward. On the question of decisions on applications and the role of the Infrastructure Planning Commission, a clear and statutory requirement for pre-application consultation with local community interests is extremely important. Cynical remarks have been made about whether "developers" can be trusted to do this. These are huge investments and huge decisions; such remarks are not worthy of Members of this House. Businesses are looking at investing hundreds of millions of pounds on some occasions. They have no interest in misleading people or in not doing things thoroughly. The last thing these businesses want is to fall at the hurdle of having their application considered because they have not done things thoroughly.
	The planning commission has a duty to do a number of things; it must meet all interested parties at the start, to agree on the processes, and ask local authorities for impact assessments. These things are very helpful. It also has a single consenting regime, which is very important. I say to Members on the Conservative Benches, having had the Barker and Eddington reports and the White Paper, that for a party that aspires to power to come before the House with no constructive view on how to improve matters made me despair.
	There was talk of a lack of democracy. I have set out the various statutory elements that will be required for consultation, yet, at the end of the day, the Conservatives want the Secretary of State to take the final decision. That will add months to the process. Will the Secretary of State second-guess the lengthy process undertaken by the Infrastructure Planning Commission? If so, on what information? Is the Secretary of State going to act, as at present, in a quasi-judicial role? If so, there is no change—that is not a new process.
	Extraordinary phrases have been used tonight, such as destroying democracy. The suggestion that the present planning inspectorate system could cope with the change required is extraordinary. How would it deal with that? We should be told in Committee how that will work. Will the planning inspectorate have the power to deal with all the consents on all the issues? That is not the case—at present, there are different forms of inquiry under different bodies. It does not add up.
	On the Climate Change Bill, the Conservatives actually pressed for the Committee on Climate Change to have executive powers and for decisions not to be taken by Ministers. Yet on this Bill they have the cheek to say quite the opposite; they want Ministers to take decisions, whereas on the Climate Change Bill they want the Committee on Climate Change to take decisions—not merely make recommendations—about issues that will influence whole swathes of industry and of life. Yet they say that the planning commission cannot be trusted and that Ministers should intervene. That is very disappointing.
	I was delighted to hear my noble friend say that the Government intend to table amendments to withdraw the proposal for appeal to local councils. At present the Bill removes the right of appeal to independent inspectors in a range of matters. I should be grateful if my noble friend could confirm that the Government will be withdrawing applications for certificates of lawful use and development and for listed building consent, which are all covered.
	I draw the Minister's attention to the power to make non-material changes. There is a widespread understanding that this problem is a result of the House of Lords ruling and that we need to regularise matters. In subsections (5) and (8) of new Clause 96A in Clause 184, the Bill appears to set out a framework that could become a bureaucratic nightmare far worse than the present position. Great unease about that is felt among developers.
	I turn finally to the community infrastructure levy. Like the noble Lord, Lord Goodhart, I am appalled by the lack of detail and reliance on regulations across a whole range of issues. It has the makings of a shambles. The idea is understandable, but innumerable issues—its relationship to Section 106, how it will work in practice, who will be covered, the costing of plans, how to cope with inflation, what if those plans change, what if development does not occur and how will infrastructure that has to be put in place before development, as much of it has to be, be funded—are simply not clear. As things stand—I very rarely say this in this House—I would find it exceptionally difficult to support that area of the Bill in the government Lobby. The intention is admirable, but the problems are great. The levy can be described in no other way than as a discretionary tax at a local level. Mrs Thatcher used the expression "community charge" to avoid the name "poll tax". This is a local discretionary tax and taxes at the margin deter some decisions. Very great care is required with regard to Section 106. I ask the Government to think again on that.

Baroness Valentine: My Lords, the business community has long advocated reform of planning to overcome long delays in delivering vital national infrastructure. Does democratic accountability have to equate to as much as 20 years from concept to delivery?
	We need to find a better solution for UK-level, strategically important projects which affords proper scrutiny and accountability but secures reliably prompt decisions in the national interest. I support the Bill as it stands in this regard.
	I shall focus today on the community infrastructure levy, or CIL. London is forecast to grow by nearly 1 million jobs and people by 2026. That means more than half a million new homes, new offices, shops and other developments. Much of it is in the East End, where if the 2012 Games do not catalyse regeneration, we will have missed a great opportunity.
	Development is critical if we are to grow and remain competitive. If London does not continue to grow, the whole UK economy will stall. It is important to improve and speed up planning for essential major infrastructure but also to deliver, at the right time, the infrastructure needed to support development of homes and commercial floor space at a local level.
	The Beatle John Lennon said: "Life is what happens while you're busy making other plans". While we are making plans, we must provide the infrastructure to support life. I mean improvements to transport capacity, schools, parks, doctors' surgeries and community facilities. They are what create living neighbourhoods and make development acceptable to existing communities.
	The Government must plan longer term for infrastructure funding: three-year funding commitments sit uncomfortably with 15-year local authority development plans, especially when the proposed CIL requires councils to prepare infrastructure plans alongside those development plans. Local authorities will assess what development is needed to support growth, the infrastructure therefore required, availability of public funds and, finally, what developments can contribute towards the cost.
	Infrastructure delivery needs to be integrated with development. When the housing development is planned, the primary school should be planned alongside it. If public funds can provide only £9 million of the £10 million cost, CIL might provide the additional £1 million from the developer, but the delivery of the school at the right time remains down to the public sector.
	This is of course iterative. If the proposed CIL cost is too high for developments to bear, the infrastructure priorities and phasing will have to be reviewed. Yes, CIL is a major step forward in infrastructure planning, but it must be established and refined through the well tested, democratic processes of the development plan system. It is not a panacea. In many cases, it will represent a small part of the overall cost. If the CIL is set too high, development simply will not happen. We will not get the homes and commercial development needed to support economic and population growth.
	CIL must be considered alongside other planning requirements such as those for affordable housing and sustainability. There is a real risk that if this is not done holistically, affordable housing delivery will fall as developers are priced out by high CIL charges. Local authorities must not make developers pay for the same infrastructure twice, under CIL, and as part of scaled-back Section 106 agreements. Those agreements should address only site specific matters.
	London First, the organisation that I lead, was one of the proponents of this alternative to the Government's potentially counterproductive planning gain supplement proposal. Delivery has been at the heart of the idea and should be fundamental to the way it works, not raising revenue. Delivery is what matters to communities, business and developers.
	In summary and to close, we have the chance to make real progress on timely and integrated delivery of infrastructure—not just the big ticket items such as Crossrail but the nitty-gritty that supports everyday lives. We must get it right and establish the right framework and mechanisms to plan and deliver infrastructure. CIL must be part of the development plan system and must not reduce or replace government funding. Clarity is needed on how and when infrastructure will be delivered, including long-term government funding commitments. Infrastructure covered by CIL should be set out in regulations, not overlapping that sought from Section 106.

Lord Grantchester: My Lords, at this late hour and with so many noble Lords having spoken before me, I do not intend to delay this Second Reading. I shall concentrate a few remarks on some of the rural repercussions in the Bill—and, in so doing, declare an interest as a landowner in Cheshire.
	Many of the projects that will come within the ambit of the new procedures will undoubtedly require land currently in agricultural use—for example, airport construction or extension, highways, reservoirs and so on. Also, agricultural businesses will continue to be affected in future as they have been in the past by the disruption arising from the construction and use of such works as pipelines and electric lines. It is important for the farming businesses and others affected that they can be assured that the works are justified as in the national interest and will not result in the cavalier overriding of their legitimate individual interests.
	The establishment of the Infrastructure Planning Commission to speed up the planning process by taking decisions on major projects is a welcome and radical proposal. Clause 5(3) obliges the Secretary of State to carry out an appraisal on the sustainability of the policy to be contained in a national policy statement. Clause 10 obliges the Secretary of State to carry out functions,
	"with the objective of contributing to the achievement of sustainable development".
	However, there are differing views and trade-offs between differing aspects of sustainability—the economic, the social and the environmental. For example, some would argue that air travel is not sustainable from carbon emission viewpoint. I trust that my noble friend the Minister will explain at the relevant time what will be meant by these provisions and how the Government will deliver their duties under them.
	The Minister is right to point to all the aspects contained in the Bill that strengthen consultation and the public say in the planning decisions. In speeding up decision-making, it is imperative that there is a minimum risk of a sense of forlornness and remoteness leading to real resentment over the manner and outcomes of decisions on major projects.
	The parliamentary requirements firming up Clause 9 will ensure that the draft national policy statement will be debated and the Minister will respond to comments. Many noble Lords have commented on how important it is that this innovative process succeeds.
	The list of projects in Clause 14 which will be subject to decision by the IPC does not include flood defence and coastal protection works. Some work of this nature is of modest scale and thus outside the scope of the Bill—but with climate change threatening increased inland flooding and the breaching of coastal defences, is it desirable to be able to give this priority on some major-scale projects?
	Under Clause 44, it is right that owners and occupiers of land must be consulted by applicants, but it must be of concern that the minimum 28 days is deemed sufficient. The suggestion that 42 days should be a minimum requirement would be fairer. I realise that the mention of 28 days and 42 days is provocative, but I have the right Bill.
	The deadline of only 14 days on Clause 50(5) for owners and occupiers of land to respond to applicants' inquiries is too short. Similarly, a period of 28 days in which to make representations to the ICP under Clause 54(5) is also too short. Large-scale projects will inevitably be complex and affected persons must be given adequate time to protect their interests.
	Under Clause 118, a compulsory acquisition order can apply not only to land required for the development itself, but also to land,
	"to facilitate or is incidental to that development".
	As a general principle, it must be right that only the minimum of land necessary to the development is taken. Clause 90 creates a new right for affected persons to insist on a compulsory acquisition hearing, and must be applauded in that regard.
	Clause 183 proposes to amend planning law so that the existing permitted development rights could be withdrawn by a local planning authority without the Secretary of State's consent, and, subject to giving 12 months' notice, could result in no compensation being payable. Many rural businesses rely on the use of permitted development rights to carry out modest scale development essential to the running of their businesses. The current requirements act as appropriate safeguards against the use of such directions except where there are compelling circumstances. The removal of these safeguards would allow more widespread interference with small-scale business decisions.
	In response to amendments tabled in the other place, the Minister pledged that the Government are,
	"keen to ensure that businesses retain the ability to carry out works without the need ... for planning permission".—[Official Report, Commons; 25/06/08; col. 392.]
	I note that the Government intend to amend the clause in Committee.
	Clause 198 proposes that the aim of the new community infrastructure levy—CIL—that replaces the planning gain supplement is to ensure that the cost incurred in providing infrastructure to support development will be funded by owners and developers of land, the value of which will increase due to the permission for development.
	Clause 200(5) provides that the CIL may be payable even where the value of land has not increased. In such circumstances, the levy may make some small-scale rural developments unviable. There are many circumstances where a farming business invests in an agricultural development which makes no contribution to its profitability and little difference to the value of the farm, but which is desirable for the business, or even necessary to comply with environmental animal welfare or food safety requirements. As a fundamental principle, should not the CIL be levied in proportion to the likely impact of a development on infrastructure? This would result in a fair and more appropriate levy. The number of common occurrences would be minimal. First, replacement of like-for-like agricultural buildings and structures; secondly, temporary permission for temporary agricultural dwellings such as mobile homes, where permission is often renewed despite the fact that there is no impact on local infrastructure; and, thirdly, rural development that has a low impact on infrastructure, such as the improvement and reuse of redundant farm buildings. Lastly, small developments that take into account environmental technologies that promote carbon neutrality. There is a strong case that these developments should be exempt and that a de minimis threshold be set.
	The CIL structure will be determined by regulations. It appears that charging authorities will be able to set their own rates, resulting in potentially huge variations in charges for similar developments from area to area.
	These guidance regulations have yet to be published, yet they are crucial and fundamental to the successful operation of the new proposals. Many noble Lords have commented that there is time to draft these regulations during the Recess and bring them forward to informed debate and to enable this House to understand better the intentions in the Bill and to build in the necessary safeguards.
	I agree with the Minister that the present regime is not fit for purpose. The Government have broadly got their approach correct to reform this tortuous process, and many noble Lords have highlighted future benefits. In my own area of Cheshire, many infrastructure improvements, such as a new station for Crewe and a second Mersey crossing, are now being proposed. I welcome seeing them progress under the proposed new system in the Bill.

Lord Greaves: My Lords, it my duty to start to bring the debate to an end on behalf of the Liberal Democrats. I declare an interest as a member of a planning authority. I am actively involved in planning; indeed, I have just worked out that I have spent a third of my life as a member of a planning committee of one sort or another. I do not know what that says, but it is true.
	I do not agree with the noble Earl, Lord Caithness, who, like all sensible Members of the House, has already gone home at this late hour. He thought that this was the worst Second Reading that he had ever attended. The arrangements for holding it have not been satisfactory for whatever reason; everybody accepts that. However, our debate has been quite outstanding in quality and has revealed a range of expertise and knowledge around the House that promises a fascinating, valuable and, in terms of the planning system, not very streamlined Committee stage. If everyone who has put forward points this evening brings them back in Committee, it may take some time. I hope that they will, because a great deal of the Bill needs to be gone over in detail.
	I support the contribution with which my noble friend Lady Hamwee opened the Liberal Democrat contributions today and those of my other colleagues, most of which I agreed with. I agreed in particular with the contributions of my noble friends Lady Miller on the environmental issues and Lord Goodhart on CIL, which must clearly be bottomed out in a more satisfactory way in Committee. I agreed with what my noble friend Lord Livsey said about Wales, which, again, must be bottomed out.
	Many other contributions from around the House provided me with a great deal of interest and intellectual stimulation—perhaps that is because noble Lords know more about these things than I do. I am thinking particularly of the contributions of the noble Lord, Lord Inglewood, for his local government experience, and the noble Lord, Lord Howarth of Newport. The noble Lord, Lord Cameron of Dillington, who is still with us at this late hour, made a series of extremely interesting contributions, most—not all—of which I agreed with. The right reverend Prelate the Bishop of Southwell and Nottingham made an interesting contribution about charities and local churches; that issue, too, among many others, must be bottomed out in Committee.
	Before he got on to nuclear power, what the noble Lord, Reay, said, about the planning system, was interesting. The planning system in this country has been a huge success over the past 60 years. We should never forget that. Think what the country would now be like without it. That is not to say that it does not need reform. His other important point was that a lot of planning is about the reconciliation of conflicting interests. Some noble Lords seem to think that we need to reform the planning system so that they can get what they want through more quickly. Perhaps that is a legitimate point of view, but the reconciliation of conflicting interests is important. That is why accountability, involvement of people and democracy must be at the heart of the system.
	Some themes will recur in Committee. Probably the best exposition of accountability was given by the noble Lord, Lord Jenkin of Roding, who made an extremely interesting speech, particularly about the relationship between the Infrastructure Planning Commission and national policy statements and between Parliament and the rest of the planning system. That will be at the heart of a great deal that we shall discuss.
	Related to that issue is the democratic legitimacy that my noble friend Lady Hamwee talked about and the idea that the IPC will consist of independent experts. Some noble Lords think that that is an advantage, but many of us think that it is what is wrong with that body. We have great concerns about it. We shall have to tease out the issues and how this will work.
	One noble Lord made the point that, whatever decisions the IPC makes, the Government will not be able to escape their consequences. These decisions are quasi-judicial and highly political. If people do not like them, they will blame the Government, because that is what the Government are for: the Government are there to take the rap for the decisions that they make and to take responsibility for them, whether they are good or bad. There is no way in which that can be avoided.
	In her extremely useful and typically thorough introductory speech, the Minister said that this process was quasi-judicial and political and that the two went together. In my own much more modest capacity, I have been involved during the past few weeks with the planning application for a new supermarket. The final decision was closely balanced. We made the decision to grant the application finally, although right until the end we thought that we would not do so. The decision had to be made in a quasi-judicial capacity, with us sitting as a planning committee. However, as a politician I am accountable to all the people in the town, who may be in favour of the application, who may be against it or who may just want to know more about it. You cannot avoid that. These decisions are quasi-judicial and political and the two are totally intertwined. It is no use pretending that that is not the case.
	Another major theme is economic development versus environmental sustainability, which my noble friend Lady Miller mentioned. However, it is not necessarily economic development versus environmental sustainability; it is economic development vis-à-vis environmental sustainability. If we get it right, it is a win-win; if we get it wrong, it is a lose-lose. There is a real feeling that the Bill is biased one way but not the other. We shall look at that in Committee.
	The relationship between the IPC and national policy statements is crucial. What is the role of the IPC? What will be left for it to decide if, in the Minister's words, planning decisions can appropriately be left to an independent body bound by that policy or, in other words, the national policy statement? The noble Lord, Lord Oxburgh, summed it up well when he said that the role of the IPC is to assess proposals' conformity with the plans. However, that is not how planning decisions work. If that is what will happen and if that is all that the IPC will do—seeing whether an application for a major infrastructure development is in conformity with the NPS—it will not have a very hard job.
	Planning decisions are much more complicated than that. Given the plan-led system that we have, there is a presumption that an application will be approved if it is in conformity with the development plan unless there are other material considerations that people think dictate otherwise. That is where the balance comes in. There are lots of material considerations in addition to the development plan. We are interested in finding out whether that will be the case in relation to national policy statements, or whether, if something is in conformity with the NPS, anything else is a matter of modification, amendment, amelioration and mitigation but not of turning the application down.
	That leads on to another major issue: the whole question of general public consent. In a practical sense, if everything that goes to the IPC is passed, because there are national policy statements, and people will put in applications only if they are pretty sure that they conform with those statements, the system will soon fall into substantial disrepute, because people will think that it is just a fix. All the consultation that the noble Lord, Lord Woolmer, and others talked about will be meaningless, because people will have their say but to no effect. They will simply be told, "That's what you think, but the national policy statement says this, and that must override everything". This is the kind of issue that we will want to discuss in Committee. The problem is that, if people are dissatisfied with the system and it is in disrepute, they will go to judicial review and the courts and the system will be clogged up. Alternatively, they will take direct action or take political action and remove the people who were responsible for all this.
	Is the present planning system fit for purpose? Our view is that, on balance, as far as big infrastructure projects are concerned—not the rest—the answer is no. Does it need reform? I think that everyone accepts that it does. Is the planning system the only problem that we have? No. Is it our main problem? That is arguable, but in some large infrastructure applications it is almost certainly not. The main problem is a lack of political will at whatever level, a lack of funds for investment or the lack of a long-term strategy. Some of us would say that we ought to get on with building high-speed railway lines, for example, but the planning system is not the reason why that is not happening.
	Is the IPC the answer to the problem? This is where we start to have doubts. Yes, we will agree with noble Lords who have said that reform is needed, but is this particular reform the right one or, if it is more or less the right one, have we got the details right? Are there other answers? Some of us very much take the point made by the noble Lord, Lord Woolmer, that if we think that there are alternative answers, we have to come up with some. We have the summer to get our heads together.
	Finally, some of us remember the Planning and Compulsory Purchase Act 2004. Time and again, when that Bill was going through Parliament, the Government said that its purpose was to make the planning system more streamlined, less bureaucratic, more efficient and more democratic. There is a widespread view that the Act has made the system less streamlined, more bureaucratic, certainly not more efficient, certainly not quicker and certainly not more democratic. There may be differences of opinion about that, but that view is certainly widespread on the ground among people who are trying to carry out the provisions. That is a warning. Just because people say that this legislation will improve things does not mean that it will do so. Just because there is a need for reform does not mean that the reform put forward is the right one. There is a great deal of work to be done in Committee. This is a scrutinising and amending House. I have no doubt at all that we will be scrutinising the Bill in great detail and I hope that we will introduce at least some substantial amendments.

Earl Cathcart: My Lords, first, I declare an interest. During the past 10 years, I have been a councillor and a deputy chairman of planning. I am a landowner and a landlord.
	I begin by thanking the many noble Lords who have contributed their considerable expertise. This debate truly displays your Lordships' House at its very best. The debate has been wide-ranging and I do not propose to regurgitate all the arguments that we have heard. I wish to concentrate on some of the main issues.
	The Bill is designed to speed up the planning process. This principle has the full support of this side of the House. However, as we have heard from many noble Lords, the Bill as it stands is in danger of trampling over another important principle—democracy. I have no doubt that much time will be spent in Committee trying to achieve the right balance between speeding up decisions and democratic accountability. We should strive to achieve both.
	I should like to start by referring to the national policy statements. We welcome their introduction, as, I believe, do all sections of this House. On the front page of Monday's FT was an article on the CBI and this Bill. It said:
	"National policy statements would be agreed on the main infrastructure sectors after public consultation and parliamentary approval".
	If only. As the Bill stands, the draft national policy statement will go out to public consultation and will then be subject to parliamentary consultation but not approval. The final decision is to be taken by the Secretary of State. What would happen if the Secretary of State's decision was contrary to the findings or conclusions of the public and parliamentary consultations? No doubt there would be judicial reviews and lengthy court proceedings. I wonder whether my noble friend Lord Caithness will win his bet with the noble Lord, Lord O'Neill, that there will not be any policy statements in place to review in two years' time because of judicial reviews and legal proceedings. It will be interesting; time will tell. However, another issue is whether a review in two years is the right answer. Should one be carried out every two years?
	The Government's position seems to be that policy should be made by the Executive—the Secretary of State—and not Parliament. They wish to keep the role of the Executive separate from the legislature. There is an argument, put forward by my noble friend Lord Jenkin of Roding, that, once the national policy statement has been approved by the Secretary of State, it should be subject to the approval of both Houses. He argues that this would give it credibility and weight. We agree with him on that. Otherwise, a parliamentary consultation would simply be a get-out clause when things went wrong, with the Government saying, "Oh, but we consulted Parliament". That would just be going through the motions without going through the process.
	We should not forget that some policy statements will be site-specific—those relating to nuclear and airport runways—but that seems to skip many of the important steps in the planning process. A policy statement that says where a development will take place is effectively already granting planning permission.
	I now turn to the subject of the Infrastructure Planning Commission, the IPC. The Bill creates an unelected, undemocratic and unsackable body that will approve developments without any semblance of democratic accountability. That is something that we are seeking to change. My noble friend Lord Reay had reservations about the setting up of an IPC at all, finding it less democratic than the present inspectorate system. My noble friend Lord Lucas also asked what value the IPC was adding to the existing system.
	Arguments have been put forward by my noble friend Lord Dixon-Smith that the current proposals will set up a regime that is undemocratic and perhaps even unlawful in terms of compliance with the UK's European and international obligations under the various directives and conventions. That could well lead to lengthy legal challenges by interested parties as the only way of establishing a right to be heard properly. This, of course, would frustrate the very purpose of the Bill, which is to speed up the planning process, and that would be a pity. We believe that some sort of democratic accountability needs to be present in this decision-making process.
	I now turn to the issue of the community infrastructure levy. Many of your Lordships have raised concerns and questions about how the levy will work. I do not propose to go over all the arguments; they were well put by the noble Lord, Lord Cameron of Dillington, and expanded on admirably by my noble friends Lord Lucas and Lord Inglewood. Does the Minister propose to repeal the Planning-gain Supplement (Preparations) Act 2007? CIL would make it obsolete. Or, as my noble friend Lord Dixon-Smith asked, are the Government planning to use the planning gain supplement at some stage in the future? Will the levy apply to charities and other non-profit-making organisations, such as housing associations? We do not want to rob Peter to pay Paul. Will the levy be retained by the local authorities concerned so that it can be spent to the benefit of the community directly affected by the new infrastructures or will some of it go the regional bodies—unelected and undemocratic bodies which are not popular with the electorate—to be spent on projects remote from the communities directly affected by the new infrastructure? This will cause serious concern across the country, and as my noble friend Lady Gardner of Parkes pointed out, this subject is already causing concern with London Councils.
	I turn to another topic that has already been addressed in today's debate, climate change. In her opening remarks, the Minister mentioned meeting the challenges of climate change, but the Bill creates no obligation on the Secretary of State or the IPC to consider climate change in its decision-making, and we are told that climate change is the single most important issue facing the world. Yet these infrastructure projects are likely to have major impacts on climate change issues. In the Bill there is a requirement to contribute to the achievement of sustainable development but nothing about complying with the aims of the Climate Change Bill. Clause 173 requires local authorities to contribute to the mitigation of and adaptation to climate change but, oddly, not the Secretary of State or the IPC. This seems a serious omission.
	A number of issues have been brought to the attention of the House by your Lordships which, although important, I will not be able to address adequately at this stage. However, it is important that we do not lose sight of many of the complex implications of the Bill. As my noble friend Lord Roberts has mentioned, Wales is a significant source of various types of energy and the Bill is unclear in some instances on the relationship between the Government and the Welsh Assembly. Scotland seems to be conspicuous by its absence in the Bill.
	I could go on, but I will not. This evening's debate has been excellent and I am sure that the many issues raised will be discussed in greater detail in Committee. All sides of the House welcome the main thrust of the Bill, which is to speed up the planning process, but it must not be at the expense of democratic accountability. We will need to find the right balance.

Baroness Andrews: My Lords, I congratulate all noble Lords who have spoken in the debate. It has been outstanding. I quite agree with the noble Lord, Lord Greaves, who said that far from it being the worst Second Reading, it has been one of the best Second Readings I have attended. I am not that biased because it has been a challenge for me as well. I have learnt a great deal from the collective wisdom of the House this evening and I am also grateful for the stamina and the support displayed by noble Lords.
	I shall try not to take too much time. I probably will not be able to answer all the detailed questions. Like other noble Lords including the noble Earl, Lord Cathcart, I shall concentrate on a few of the bigger issues. Much advice has been offered to the Government this evening. There has been some very refreshing common sense from my noble friends and some extremely strong key arguments have emerged. Of course I shall engage with noble Lords in detail. I shall be in touch and we shall meet and exchange letters over the next few weeks and months.
	I do not believe, as the noble Baroness, Lady Hamwee, said, that we have two sides to this argument, for the same reason that I do not believe that there is necessarily a conflict between a prosperous society and a sustainable economy and society. Like the noble Lord, Lord Greaves, I think we are about a sustainable society and economy, and the Bill helps us towards that. Many values as well as arguments are shared by the business community and the environmental lobby. One of our tasks is to make sure that those two lobbies talk to each other in the course of the next few months.
	It is true that the present planning system has very few friends across the Floor. I was grateful to my noble friend Lord Woolmer for challenging the parties opposite to suggest what they might put in the place of what we have brought forward. I am pleased that there is a broad consensus across the House for what the Bill is designed to do. I am also grateful to my noble friends for the way in which they have graphically described the catastrophic failure of the present system. I am thinking of the contribution made by noble Lord, Lord Dixon-Smith, who said that there is no case against reform. The noble Lord, Lord Hart, gave a graphic description of court procedures and the difficulties they impose, as did the noble and learned Lord, Lord Boyd, who has great experience.
	The noble Lord, Lord Cameron, described particular instances of how the system has failed to deliver over the years. The noble Baroness, Lady Valentine, spoke of the imperatives that London alone faces. My noble friend Lord Rosser described the strains that the system imposes. Other noble Lords spoke of the need to meet the challenges of energy, water and so on, as well as security, and the risk of not getting that right. I was very grateful for the expertise of the noble Lords, Lord Best and Lord Mogg, who said that the planning system is the single greatest obstacle to getting the energy mix we want for the future. The noble Lord, Lord Oxburgh, talked about how the system is incapable of meeting the situation that we face. My noble friend Lord O'Neill spoke graphically and powerfully of the implications of our present system. They were strong arguments indeed, and I thought we were all listening, quite transfixed, to some of them.
	At the same time, other noble Lords marked up their reservations and focused essentially on issues such as sustainability and climate change, the role of NPSs and parliamentary scrutiny, ministerial accountability and the Infrastructure Planning Commission. They also spoke about a number of different, separate issues that I will try to come to, but if I run out of time, I hope noble Lords will forgive me if I write to them on those points.
	I turn first to climate change and sustainability because they are at the heart of the Bill. It was substantially changed in another place as we strengthened the sustainability duty. However, I listened carefully to what was said by the right reverend Prelate the Bishop of Liverpool, the noble Baroness, Lady Miller of Chilthorne Domer, and my noble friend Lord Judd about the implications of, and the relationships with, climate change in the Bill. Climate change will be a prime consideration in the drawing up of the NPSs. The planning White Paper included a policy commitment to consider climate change when national policy statements are being developed. We have delivered this by requiring an appraisal of sustainability for every NPS. Climate change would be considered as part of that wherever relevant. The new regime will also be subject to the provisions of the Climate Change Bill, which imposes a general duty on Ministers to meet carbon budgets and to publish proposals and polices for meeting them. As many noble Lords know, the Bill places duties on the Government to tackle the issue of climate change at this level.
	I do not believe that there is a need to place a specific duty on the Secretary of State in this respect. I will have to write to the noble Lord about the European lawyers; I do not think they are quite correct, but I will make sure. For example, where the EU strategic environmental assessment directive applies, we will carry out an appraisal of sustainability that will cover all obligations under the directive. Where it does not apply, a robust assessment framework will apply to all statements to ensure that environmental, social and economic objectives are properly factored in to their development. Government departments are working on that now. Very important points were raised by noble Lords this evening, and I will now look closely at the detail of the Climate Change Bill and at how it will work alongside the provisions of the Planning Bill.
	On the habitats directive, I say to the noble Baroness, Lady Hamwee, that yes, the IPC will have to meet the obligations of the habitats and birds directives. That includes the appropriate assessment of plans and projects likely to have a significant effect on the European sites and the consideration of protected species.
	Noble Lords welcomed the simplification of consent regimes, the separation of policy from planning, the NPSs and the role of Ministers in making and being seen to make policy on the NPSs, parliamentary scrutiny, and the improvement of processes—speeding them up. I think there was probably a majority in favour of the IPC as well. As the noble Lord, Lord Jenkin, said in a powerful speech, we are offering a seamless package. We have built accountability into the front end of the process, exposed the Minister in an uncomfortable way for the first time, in order that we can safely have an Independent Planning Commission doing the right job. I will come to that in a moment.
	On the questions raised about the NPSs and their status—for example, the question about where they fit into the planning statement—there is a statutory requirement for regional planning bodies and local planning authorities to have regard to national policies and guidance when preparing development plans. Once a national policy statement is designated, the relevant development plans, including spatial strategies and local development frameworks, should be consistent with it. NPSs could then influence local decisions.
	I am sorry that the noble Earl, Lord Caithness, is not in his place, because I can assure him that we are expecting the first of the NPSs by the middle or end of next year. It will probably be the one that deals with overarching energy policy. Some flood defences will be included—for instance, dams and barrages that generate electricity or ensure adequate drinking water—but the impact issues about sea walls remain primarily of interest to the region and the surrounding local area, so local authorities are best placed to make those decisions. I think that that takes care of a point raised by the noble Baroness, Lady Miller.
	On NPSs, my noble friend Lord Judd raised the question of the air transport White Paper. I assure him that before a pre-existing policy statement was designated as an NPS, Ministers would have to ensure that the standards of consultation and appraisal set out in the Bill had been met. We are already committed to producing a further progress report on the air transport White Paper between 2009 and 2011, which will provide a good opportunity to designate the ATWP in conjunction with that report. I hope that that answers that question.
	Many things have been said about the democratic process. I described the three new opportunities for people to speak up and be heard on how the process will affect them. In our engagement with environmental groups, we have challenged them to tell us how we could improve the consultation processes on NPSs in future. I confess that I was a bit depressed to hear noble Lords say that they thought that the pre-application process might be hijacked by developers. My noble friend Lord Woolmer addressed that point.
	If noble Lords studied the Bill, they would see that throughout it is clear that local authorities have the key role on advising the promoter how to conduct the consultation and advising the IPC as to whether the promoter has carried out the consultation. The developer can get advice from the IPC. All that is about a better process and the referee role of the local authority. As regards the commission, I do not understand how the process can be described as undemocratic, when I listed so many different opportunities for people to engage and to be heard throughout the process.
	We had some graphic illustrations, not least from my noble friend Lord Hart and the noble and learned Lord, Lord Boyd, of the failure of cross-examination and how it does not dig out the true nature of some of the evidence available. The answer to the question raised by the noble Baroness, Lady Gardner, is that the open-floor hearing can be triggered by anyone who has an interest. I feel sure that we will return to those issues in some detail at Committee.
	I see this as a genuinely challenging process, and I am grateful to my noble friend Lord Haskel for his remarks about how adversarial it is. I can tell him that we are keen to increase planning aid. We are putting it up to £3.2 million in 2008-09, and will make further increases in later years, because we want people to have the resources and the access to information so that they can have the confidence to challenge what they are being told. That is absolutely vital. The same is true of the resources for the IPC to do the job that it needs to do, so I hope I can reassure my noble friend Lord Hart on that point.
	The noble Lord, Lord Reay, asked about the culture of the IPC, how it will operate and exercise its independence, and how valuable that will be. The noble Lord, Lord Mogg, answered that it will be objective and expert. It will make its own judgments. The noble Lord, Lord Cameron, said that it would be democratic. The answer to the question whether it will be some straw man or collection that will simply rubber-stamp is no. This body can say no. It is independent. Yes, it will be bound for the first time by national policy statements, which the Minister will be accountable for, but this is an independent commission that will make judgments bearing in mind local impacts as well as the overarching policy.
	That takes us to the sorts of issues that have exercised noble Lords this evening, such as the parliamentary process and the scrutiny that is on offer. The noble Lord, Lord Lucas, made a powerful case for further scrutiny, as did the noble Lord, Lord Jenkin. However, I must say to the noble Lords, Lord Burnett, Lord Cameron and Lord Oxburgh, and to the noble Earl, Lord Cathcart, when he wound up his remarks, that we have always maintained in this country that there is a definite separation, which is that Ministers have responsibility for making policy and Parliament has responsibility for scrutinising legislation.
	For the first time, we have provided for the voices and views of both Houses of Parliament on policies that will have great national significance to be heard and taken account of by the Government when they reflect on the expertise of the Select Committee and both Houses of Parliament and what they say. It is absolutely right that Parliament should have a voice about policy. Indeed, that is its proper function. However, requiring parliamentary approval of national policy statements, rather than ministerial accountability for them, would create an entirely different proposition and take us into unknown territory.
	In another place, my right honourable friend said:
	"Given that the policy statements are policy documents, they are closer to planning policy statements ... which are not subject to parliamentary approval, than to legislation ... I do not see a ready-made model or suitable precedent for a binding vote on such statements of policy. Unlike with legislation, we could be taken into unprecedented and problematic territory if the two Houses were to take a different view of the policy that might be contained in a national policy statement".—[Official Report, Commons, 2/6/08; col. 574.]
	That might not happen, but we must consider the implications of that possibility, however remote it might be. As I have said, the Bill provides for the interests of both Houses to be recognised and for the Secretary of State to respond and reflect them in a formal statement.
	The noble Lords, Lord Lucas and Lord Cameron, argued that there should be an opportunity for the expertise of this House, too, to be brought to bear on the process. I would be the last person to deny the expertise of this House, particularly after having listened to this debate. I hear what noble Lords say about the need for some form of additional scrutiny. We will reflect on what they have said. It will also be a matter for the authorities of this House.
	Briefly, noble Lords have challenged the notion that ministerial accountability is sufficient. I was quite surprised to hear the noble Lord, Lord Burnett, say that this was a form of Ministers passing the buck. I can think of nothing more remote than a Minister in the front of that process having to defend policies against challenge. The buck will most clearly be seen to stop with the Minister.
	The end of the process that we have created leads to an open and democratic scrutiny and expert testing. The problem with reintroducing the Minister, as I think one of my noble friends said, is what could he do? He could not revisit the entire evidence as set out in extraordinary detail by the IPC. Could he merely confirm what the IPC has done? What would be the accountability? If we are to have these debates in Committee, we need to think through the implications of what we would be asking Ministers to do.
	I shall finish with a few remarks on CIL and on Wales. I listened very closely to what the noble Lord, Lord Goodhart, said about CIL. I have nothing to add to what I said in my introduction. The regulations will be very complex and detailed. They will need great care, which is one reason why we did not put the detail in the Bill. I have listened to noble Lords, not least my noble friend Lord Woolmer. I can say to the noble Baroness, Lady Gardner of Parkes, that CIL is discretionary. Local authorities will have a choice. It will be local and will sit alongside Section 106. A negotiated planning obligations regime will remain in place and will provide further assurance on that point. Clause 209 repeals the provisions in the Planning and Compulsory Purchase Act 2004, which, if it had commenced, would have been used to repeal Section 106.
	I have listened very closely to the important points raised by the right reverend Prelate the Bishop of Southwell and Nottingham on the implications for charities and, likewise, the arguments on affordable housing. We have met already and will go on meeting with those bodies which are concerned. We will listen closely and think about what we can do. I take the point made by both noble Lords on that.
	Finally, my noble friends Lady Whitaker, Lord Judd and Lord Howarth, and the noble Baroness, Lady Miller, powerfully addressed design. We are supporting good design in planning through funding, training and capacity building. National policy statements will be the primary reference points for the IPC when taking decisions on national statements. We will try to integrate all relevant aspects of policy, including policy or design together, and we will have a lively debate on how best we can improve on that process.
	I was asked why the RDAs should not do planning. We see benefit in aligning economic and spatial planning led by the RDAs in partnership with local authorities. Our proposals are designed to achieve a better balance between the two. But we are out to consultation and there is certainly time for debate on that.
	On Wales, planning is of course a devolved matter. There are some reserved issues on energy. The noble Lord made some very important points. National policy statements would be the primary policy consideration for the commission, but in taking decisions the commission would have discretion to take account of all information which it considers relevant and important to the case, including applications relating to Wales, evidence from the Wales Spatial Plan, the local development plan and planning guidance. I should like to meet noble Lords who have an interest in Wales as soon as possible so that we can make sure we understand the full implications of what is in train for these energy applications in particular and for cross-border issues, which are complex.
	I feel sure that I have run out of time. I have not addressed thresholds, the green belt and so on, but I will write to noble Lords. It has been an excellent debate. It is a rather terrifying prospect that we will go into the Committee stage with all that and more to come, and have detailed engagement. I am sure that when we do we will be refreshed after the summer. I look forward to it. I am most grateful to noble Lords.
	On Question, Bill read a second time, and committed to a Committee of the Whole House.

Health and Social Care Bill

The Bill was returned from the Commons with the amendments agreed to.

National Insurance Contributions Bill

The Bill was returned from the Commons with reasons for disagreeing to the Lords amendments. The reasons were ordered to be printed.
	House adjourned at 12.39 am.